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.

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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.”

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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”

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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?”

Another Tool in the Toolbox for Domestic Violence Pretrial Determinations

At the time of Laura’s death in 2013, her abusive ex-boyfriend, who was also her murderer, was out on bail awaiting trial for charges stemming from prior domestic violence attacks and threats. According to court records and family members, he previously had “allegedly beat her with a baseball bat, dragged her behind a car, strangled her until she blacked out on the floor and told her over and over how he would kill her if she ever left him.” This is one of various tragic cases we hear about each year. Alternatively, however, there have also been other cases where alleged abusers have been detained pretrial, have not been able to post bail either because it was denied or because they could not afford it, and after spending some time in jail had the charges dropped for a number of reasons.

Out of this wide range of cases there are special legal considerations at the pretrial stage for domestic violence cases due to the potential risk to the victim and the past or present association of the accused and the victim. Although our legal system in California recognizes that there must be extra precautions for the victims’ safety, in practice California does not have a validated evidence-based method to identify and manage the most dangerous domestic violence offenders while affording those others accused their due process rights during the pretrial stage. In this post I will describe the California procedures already in place when dealing with domestic violence cases, and recommend some evidence-based risk assessment tools that the courts and others involved can use. Continue reading “Another Tool in the Toolbox for Domestic Violence Pretrial Determinations”

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?”

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.

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.