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.


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.

Extradition: A Hurdle to Bail Reform

As an aspiring prosecutor, I was ambivalent to the issues of commercial bail and its negative effects on criminal defendants. My default allegiance is to victims of crime and my sympathy for the accused only goes so far. However, over the course of this semester, I have learned that the commercial bail industry does not serve the interests of justice that I thought it did. It does not do more to ensure public safety than other pretrial release alternatives, and it creates a large in-custody pretrial population which is costlier than other release alternatives. However, bail reform advocates still have one glaring problem that needs to be addressed before completely eliminating the practice of commercial bail in California. That is the problem of extradition.

Continue reading “Extradition: A Hurdle to Bail Reform”

Van Atta v. Scott: Why the Supreme Court Could Not Solve the Problem

In an earlier post, I detailed the California Supreme Court case, Van Atta v. Scott, which “changed the game” for all in-custody defendants seeking pretrial release on their own recognizance.  To recap, the court held that keeping a defendant in custody before trial is an infringement on individual liberty under the 14th Amendment.  Courts may not violate someone’s liberty interest without due process of law.  Due process in this case requires the prosecution to prove that a defendant should be held pretrial, rather than requiring a defendant to prove to the court that he or she should be released. By placing a burden on the prosecutors, I assumed the Van Atta decision would make it easier for defendants to be released on OR.  The way the court described the harm of pretrial detention gave the impression that prosecutors would face a difficult task in keeping defendants detained pretrial.  Turns out that’s not the case.

Since the ruling in Van Atta, the number of defendants released on OR has actually gone down.  The Bureau of Justice Statistics conducted a study of the 75 most populous counties in the United States, twelve of which were in California.  The study showed that from 1990 through 1994, release on OR accounted for roughly 41% of all pretrial releases, whereas surety bond accounted for only 24% of releases.  However, in 2002 through 2004, surety bond releases increased to 41% of all releases, while the number of defendants released on OR decreased to just 23%. (pdf pg. 2).  In addition, from 2000 to 2009, California’s largest urban counties relied on pretrial detention more than urban counties in other states. (Figure 3).  These statistics suggest that Van Atta has not really had any meaningful impact on defendants requesting release on OR.

The infrequency of OR release lead me to question my assumption that Van Atta made it more difficult to detain defendants pretrial.  The initial reaction is to assume that judges are not holding prosecutors to their standard of proof, and thus ignoring the California Supreme Court’s ruling.  However, upon further review, that answer is too simple.  The reason Van Atta has not made it easier for defendants to be released on OR is two-fold.  First, the decision itself does not provide trial court judges with sufficient guidance about how to implement its ruling and change the OR determination process.  Second, and perhaps most important, the rules in place that govern pretrial detention and release procedures make it easy for prosecutors to meet their burden.

Like many appellate level decisions, Van Atta leaves California trial courts with a stated principle of law, but without much detail about how that principle should be implemented.  The principle itself is simple enough.  The People now bear the burden of proving why a defendant should not be released on OR pretrial.  However, the court does not explain what standard the People are required to meet.  It does not say whether it is by a preponderance of the evidence, clear and convincing evidence, or evidence beyond a reasonable doubt.  Prosecutors are simply required to prove that a defendant should be denied OR.  Imposing a burden without clearly defining the standard by which it is supposed to be applied makes the burden relatively meaningless. It provides no guidance to either prosecutors or judges.

Another issue with the Van Atta decision is that it creates a rule of law that, in practice, contradicts the California Constitution. Article 1 Section 12 of the California Constitution states that a person “shall be released on bail by sufficient sureties.” In contrast, the same section states, “a person may be released” on OR in the court’s discretion. The distinction between may and shall is important because it establishes that one is required, while the other is permissive. Every defendant, except for a few limited exceptions, must receive surety bail. On the other hand, no one is entitled to release on OR. However, under Van Atta’s rationale, courts no longer have discretion over the decision to grant OR release. They must do so if the prosecutor is unable to prove otherwise.

For example, let’s assume that a defendant is arraigned on a non-capital felony offense. The court is required to set bail for the defendant.  After arraignment, the defendant makes a motion requesting release on OR.  If the prosecutor offers no argument in opposition to the motion,[1] then under Van Atta the state has not met its burden of proof, and the court would have to release the defendant.  Therefore, Van Atta creates a situation in which defendants receive a presumptive right to OR as soon as they request it.  It effectively takes away the discretion of courts under the California Constitution. What’s left is an unworkable rule that’s difficult to implement.  How does a court place a burden of proof on prosecutors without creating a presumptive right for defendants?

Perhaps the answer is that courts may still refuse to grant OR release sua sponte (i.e. within their discretion) even if a prosecutor does not meet the burden of proof.  That certainly comports with the discretionary language of Article I § 12.  But of course, that doesn’t fit with Van Atta.  According to the court, it was unconstitutional for San Francisco Superior Court judges to require defendants to prove that they should be released on OR.  However, if judges may still deny OR release without a prosecutor making an argument, then nothing has changed. We are still left with the problem of defendants fighting to convince judges that they deserve to be released.

Even if we assume that Van Atta did create a workable rule that imposes a burden on the People to prove that a defendant should be denied OR, the rules of the game make it easy for prosecutors to meet that burden.  When the Court decided Van Atta, the defendant’s likelihood of appearing at future court proceedings was the only determination courts had to make when deciding whether or not to grant OR.  Public safety was not a factor when Van Atta was decided, but now it is the primary factor.

It follows that if the prosecution bore the burden of proving a defendant’s likelihood of appearance, the prosecutor now also bears the burden of proving that a defendant is a risk to public safety.  Proving that risk is not terribly difficult when there is apparently a rule in California Superior Courts that a judge must accept as true all allegations filed in a criminal complaint. I say “apparently,” because the rule actually does not exist in any statute, regulation, or local rule. But I’ve heard prosecutors and judges reference it in open court. Supposedly it originates from an 1879 California Supreme Court decision, Ex Parte Duncan. In that case, the defendant was in custody and he petitioned the court to reduce his bail.  The court denied the request, stating that “we must assume in this proceeding that the petitioner is guilty of . . . the felonies of which he is indicted.”  The words “in this proceeding” are crucial because it means that the court was limiting the presumption of guilt to situations in which a grand jury had already decided that there was enough evidence to charge the defendant with a crime.  However, the rule has expanded over time, and many judges now presume guilt at all stages of the criminal justice system for purposes of bail.  The result is an incredibly powerful tool for prosecutors.

The prosecutor can effectively argue that a given defendant is a threat to the public simply by virtue of filing charges of criminal behavior that paint the individual as a threat.  The evidence doesn’t have to be weighed, and judges don’t have to consider any mitigating factors absent from the complaint.  The ability of a judge to presume that a defendant is guilty for purposes of setting bail makes the prosecutor’s job of fulfilling his or her burden of proof substantially easier.

I learned through watching felony arraignment and bail motion proceedings in Santa Clara County that Van Atta has not really made it a challenge for prosecutors to successfully oppose a motion for OR. In over 70 arraignments and pretrial bail motion proceedings of in-custody felony defendants I saw judges grant OR, or supervised OR, only five times. In one case, the prosecutor was able to convince the judge to deny OR because the defendant had allegedly told his victim, “I am going to f*** kill you.” The judge said that she must believe that the defendant did make the statement, and denied OR on the basis that defendant was a threat to public safety. The entire argument lasted three minutes. This was the norm during most motions for OR release and it was not the type of adversarial proceeding I envisioned after reading Van Atta.

Although I viewed Van Atta v. Scott as a landmark decision for defendants, it really hasn’t had a meaningful impact on the amount of defendants released on OR. It may be easy to blame the judges and prosecutors for ignoring the decision and not adhering to precedent.  However, I think it is more nuanced than that. Even if the parties within the criminal justice system believe that they are adhering to Van Atta, our bail determination procedures render the decision toothless. It is clear that if anyone is serious about addressing issues regarding bail and pretrial detention, meaningful statutory reform is necessary. Litigation, even at the highest level, may not be enough.


[1] This is a very unlikely scenario, but illustrative nonetheless.

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

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

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


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


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

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

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

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

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

The Unexamined Consequences of Allowing Advertisements in County Jails:

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

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

Partners for a Safer America (Jail Advertising Network)

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


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


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

The Prosecutor’s Role in Pretrial Release: An Analysis of Van Atta v. Scott

At first glance, a prosecutor does not appear to play much of a role in the bail and pretrial release procedures. Under California law, everyone is entitled to monetary bail that is set according to a master schedule. That schedule is created annually by judges in each individual county. The decision to increase or decrease that amount, or to release a defendant on his or her own recognizance (OR) prior to trial, is entirely within the discretion of the trial judge. It used to be the case that a judge could set a bail amount that far exceeded what an individual could pay as well as deny that individual’s request to be released on OR without the prosecution so much as lifting a finger. That all changed with the 1980 California Supreme Court decision, Van Atta v. Scott. Continue reading “The Prosecutor’s Role in Pretrial Release: An Analysis of Van Atta v. Scott”

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.