Privatization of Money Bail

In a previous post, I described the basic structure of for profit bail and addressed potential concerns with the privatization of this section of criminal justice. This post will address whether private bail agents save taxpayers’ money, increase efficiency and innovation in pretrial release, allow policymakers to focus on policy instead of procedure, streamline and downsize government, and, for their customers, whether they increase flexibility of service, quality of service, and the appearance rate in court.

The best approach to this analysis is to look at the service needed, the service actually provided, and the comparative costs and benefits of the private system against public systems. (Here’s an alternative analysis concluding that financial remuneration for pretrial detainees is a preferred solution). The service needed is simple. We presume the innocence of criminal defendants and, in order to not deprive them of liberty without any proven reason, we release the defendant pending trial. The public wants assurances that the released defendant will: 1) not endanger public safety during pretrial release and 2) show up to court (or prevent a failure to appear, “FTA”). Money bail only addresses one of those needs – the failure to appear, discussed below. For the sake of argument, and because the bail industry claims to protect public safety, I address public safety first. Continue reading “Privatization of Money Bail”

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Lose your job or lose your freedom?

Imagine that you were arrested on an alleged misdemeanor offense and the court has allowed your release from custody on a promise to appear (own-recognizance) to your scheduled court date. You work full-time, are the primary or only breadwinner of your family, and you live on a low-wage paycheck-to-paycheck basis. You’ve told your boss in advance that you have a mandatory court proceeding to attend and, based on that conversation, you now fear that your boss will fire you if you miss that day of work to attend court. As the day of your court hearing approaches, you must make a critical decision between attending court or attending work. No matter which one you choose, the consequences for not choosing the other are grave; if you miss work you will potentially get fired and struggle with meeting basic life necessities for you and your family, if you miss court an arrest warrant will likely be issued against you along with additional charges pursuant to your failure to appear (FTA).

The Problem

There is no empirical data in California that demonstrates how often individuals fail to appear as a result of fearing employer retaliations. There is also no empirical data to show how often individuals are terminated after they have missed work to attend a court hearing. This data may be difficult to obtain for two reasons: first, employer motives are challenging to track, and second, there is the possibility that employees do not tell their employers about their court dates for a variety of reasons.

A survey in Nebraska of about 8,000 misdemeanants from different counties found that “the highest-rated reasons for non-appearance reflect very practical, instrumental factors (e.g., “had scheduling [or work] conflicts.”) (pdf, go to page 24). The Bail and Release Work Group of Santa Clara County stated that individuals miss court appearances “for many reasons unrelated to a desire to avoid justice—including inability to miss work” (pdf, go to page 20). From both my personal observations in court and my interviews with professionals in the criminal justice system in Santa Clara County, it appears common for defendants to miss their court date out of fear that they will lose their job for missing work. (Class/personal interview with Public Defender Ms. Panteha Saban, 4/13/16. Email interview with pretrial service agent, 4/15/16.) So what if there was legal protection that would prohibit an employer from retaliating against an individual who gave advance notice and missed work in order to attend a mandatory criminal court proceeding? Continue reading “Lose your job or lose your freedom?”

Money Can buy you Happiness in Jail

As I have previously discussed, the criminal justice system has become an avenue for the government to make money. We are seeing an influx of cities, counties, and states using criminal charges as a basis for monetary charges assed in exchange for someone’s physical freedom during pretrial, to charge for basic needs while in custody, and to charge for post-sentencing court-imposed requirements. My previous post focused on pretrial release fines and fees and my next post will hone in on the fines and fees related to diversion programs and post-sentencing release, which means this post will illustrate fines and fees imposed while in custody.

A defendant may be in custody at any time once she is arrested for a crime. She may be in custody both pending and during trial because she was ineligible for release (either by statute, a judge’s discretion, or because she did not have the means to pay for her release), or she may be in custody as part of her sentencing. Typically, a person in jail, opposed to prison, is there either pretrial or during trial but pre-conviction; awaiting sentencing and/or transfer to another facility; or serving a relatively short sentence, usually a term less than one year. Prisons are long-term holding facilities that typically house individuals who were convicted of a felony and sentenced to serve more than one year. This post will include fines and fees imposed and collected in both jails and prisons. 

Pay to Stay

The in-custody fee that tends to have the most visceral reaction is the practice of ‘paying to stay’ or charging a ‘per diem’ fee. These fees, typically utilized by county jails, but also in place in prisons, actually charge inmates a daily ‘room and board’ fee for being incarcerated, as if the person 804af573e62f82bd5a90a97b187e0671checked into a hotel. Nationwide, it is unclear whether or not these fees begin accruing while a person is in custody prior to sentencing, if the per diems are only imposed once sentencing has taken place, or if, like in California, the fees can be charged retroactively for pre-sentencing custodial time after a person has been sentenced. Continue reading “Money Can buy you Happiness in Jail”

Brown Better Have My Money! Part 2: Who manages Prop 47’s savings?

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Prop 47 reclassified several drug possession and petty theft crimes into misdemeanors. This change permitted state prison and county jail inmates to have their sentences adjusted in order to reflect this change. Ideally, this would decrease populations in both prisons and jails, decreases that would save both the state of California and California counties money. California counties fund and manage jails whereas the state of California manages prisons. Any money saved at the county level would be kept amongst the counties.

I.  How savings were supposed to be calculated

The California Director of Finance calculates Prop 47 prison savings and transfers that money from the General Fund into the “Safe Neighborhoods and Schools Fund.” (PDF page 7). Then, the money will be distributed to local communities. 25% of the savings will go to K-12 public schools’ truancy prevention programs, 65% will fund mental health and substance abuse treatment programs, and the remaining 10% will go to the California Victim Compensation and Government Claims Board. (PDF page 8).

In January, Governor Brown released his proposed budget for the 2016–2017 year, reporting that there were 4,700 fewer inmates in California state prisons thanks to Prop 47. Accordingly, the Director of Finance calculated $29.3 million in savings that would be placed into the “Safe Neighborhoods and Schools Fund.” But many felt that this amount is too small. The Legislative Analyst’s Office (LAO), while agreeing with the 4,700-inmate decrease, disagreed with the governor’s estimate of how much housing a prisoner actually costs in California.

Continue reading “Brown Better Have My Money! Part 2: Who manages Prop 47’s savings?”

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”

Brown Better Have My Money! The Prop 47 Savings Controversy

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Original Prop 47 Advertisement

Photo Credit: Obey Giant, November 3, 2014

In order to pass Proposition 47, proponents needed to appeal to California voters and taxpayers. Hence, Prop 47 was entitled the “Safe Neighborhoods and Schools Act”. The proposition stipulated that its passage would save money due to the reclassification of nine felonies into misdemeanors and that these savings would be sent to local communities to be allocated for specific programs. Counties could use these funds to support substance abuse treatment programs and other mental health services for their parolee and inmate populations. In addition, counties could invest in victims’ services as well as K-12 public school truancy and dropout prevention programs. (PDF page 7).

Today, California voters are wondering if the state is filling its Prop 47 promise, the promise to spend fewer tax dollars on the punishment of nonviolent drug users and petty thieves. Voters wanted to spend more money on schools and mental health services, less money on long-term incarceration. Unfortunately, the state has recently reported that Prop 47 did not save the anticipated funds redirected to local communities.

Click here for details regarding Governor Brown’s contested report Continue reading “Brown Better Have My Money! The Prop 47 Savings Controversy”