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

My series (part 1, part 2,) of posts have sought not to focus on the flaws of the money bail system (my colleagues have done an admirable job), but to highlight an alternative – risk-based bail.  I’ve discussed tools that are better indicators of a defendant’s risk than the proverbial gut, the history of national bail reform and the 4 elements that make up risk-based bail, and an insider’s look into effective implementation of risk-based bail here in the federal Northern District of California. However, there are still those who believe a risk-based bail system is not as effective as money bail. This post assesses the arguments proposed by the status-quo crowd.

There are a wide variety of arguments by proponents of the money bail system. The sources of these arguments are similarly varied, from bail bond associations, legislators, judges, and even civilian comments on websites (First Amendment exercise at its finest). However, the two most prominent arguments seem to be the following:

  • Money bail is a great incentive for defendants to show up to court
  • A money bail system is free to society and taxpayers

When assessing the system (in practice not just theory) it is still clear, money bail is a bad deal, and one we can no longer afford.

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


The Socioeconomic Consequences of Being Accused of a Crime

The leading arguments in favor of restricting bail and pretrial release are that those who are accused of crimes pose a danger to society and will fail to appear at their court date. Former Attorney General Holder, the highest ranking legal officer in the country, recently noted that non-violent defendants “could be released . . . and allowed to pursue or maintain employment, and participate in educational opportunities and their normal family lives—without risk of endangering their fellow citizens or fleeing from justice.” Yet two-thirds of the 500,000 un-sentenced individuals currently awaiting trial in jail are low risk, meaning they are identified as “posing no significant risk to themselves or the community with a likelihood of reappearance at subsequent court dates.” These “low risk” individuals, when forced to remain in jail due to their financial status, face very high risks to their socioeconomic status. The purpose of this post is to explore the socioeconomic consequences pretrial detainees are forced to endure due to their incarceration.

The Supreme Court has endorsed the idea that an arrest is an act that can “seriously interfere with the defendant’s liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family, and friends.” It logically follows that that excessive, and even short term, pretrial detention can make these problems exponentially worse. Continue reading “The Socioeconomic Consequences of Being Accused of a Crime”


Este semestre, la clase del derecho penal investigó la forma de fianza que opera en el condado de Santa Clara. La clase descubrió que las personas que han sido detenidos y llevados a la cárcel principal no tienen acceso a la información necesaria sobre la liberación durante el proceso de reserva (booking). Mientras que hay anuncios con información de las empresas comerciales de fianza, no hay nada publicado en “el tanque” para explicarle a la gente que es posible ser liberado sin necesitar que pagar nada pagar por su liberación antes de la conclusión de su caso. Erin Callahan escribió acerca de los posibles problemas que esto podría causar a las personas acusadas de un delito menor.

Después de aprender acerca de este problema, mi colega Ruby Renteria y yo decidimos crear un documento que les explique a los individuos que pueden ser elegibles para salir automáticamente con una promesa de regresar a corte y la liberación propia (OR) que podría ser publicado en el tanque. Hicimos la hoja que se encuentra abajo y se la presentamos a el Grupo de Fianza y Liberación (Bail and Release Work Group) de el condado de Santa Clara. Esperamos que esto marque el inicio para asegurarnos que esta hoja se agá disponible para las personas que necesitan esta información.

OR Worksheet_SPANISH

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?”

Can Jail be Non-Punitive?

In the eyes of the law, pretrial detention is not punishment. In Bell v. Wolfish, the Supreme Court of the United States held that pretrial detention is supposed to be “non-punitive.” That is, pretrial detention is not supposed to inflict, or constitute, punishment. The case involved a challenge to the conditions of confinement in a federal jail in New York. The Court determined conditions that amount to punishment violate a pretrial detainee’s due process rights. Pretrial detainees cannot be punished because they have not yet been convicted of a crime.

Ask yourself: “Would I consider spending time in jail to be punishment?” My guess is that the vast majority of people would agree that spending any amount of time in jail is punishment, regardless of the conditions. The horrific conditions of the prison system are well known, given prisons’ prevalent depiction in movies and pop culture, yet jails are just as bad, or in some cases worse. Typically, jails are short term, locally-operated facilities that hold inmates awaiting trial or sentencing and inmates sentenced to one year or less, while prisons are long-term facilities run by the state or federal government and hold inmates with sentences of more than one year. Pretrial detainees, who are presumed innocent, may be subjected to worse conditions than many of the most hardened criminals because they are housed in jails. One individual who was spending time in a county jail facility noted, “I would have preferred to go to prison” because “their medical facilities are better, their food is better – everything is better. They have TV, radio, yards.” As a member of the Santa Clara jail commission put it, “when you find yourself hearing ‘Gee, I wish my son was at San Quentin,’ that sure is an indictment of our jails.”

Now consider the fact that pretrial detainees are subject to the same conditions as those who have been convicted. Continue reading “Can Jail be Non-Punitive?”

The Dog-Eat-Dog Bail Industry

Early in my research, I developed the crazy idea that bail agents might be willing to talk to me. Soon enough, this crazy idea became a reality. I began reaching out to bail agents and found them to be quite responsive. I met them wherever they were. Sometimes, that meant meeting them in the dimly lit back room of a local bail agency. Other times, it meant having a meeting in an agent’s elegant home, looking like it came right out of a Martha Stewart Living magazine (complete with a vintage pale-blue Corvette in the driveway).  I also met the demands of their busy schedules. One bail agent insisted upon multi-tasking during my interview, taking questions while on the phone with clients, whom he called “bro.” (Interesting conversation snippet: “Bro, don’t f*** up with me.”) Eventually, this agent had to cut our meeting short since he was slammed with work. As I exited this bail agency, slightly embarrassed and slightly offended, it all added up and hit me:  the bail industry is really competitive.

After all, there is a lot of money on the line. That pale-blue Corvette must be earned. Bail agents are paid through commission and have to hit monthly numbers. Every premium (the amount that is charged to a client) is split amongst the bail agency, the surety insurer, and the bail agent. Since 10% is the cap on premiums, a high volume of customers is one way to succeed as a bail agency. One way to achieve such high volume is to offer more flexible payment plans for clients. But doing this can make revenues go down because clients often default upon these plans. And in general, a high volume of clients is hard to achieve because of the fact that the number of bail agencies has increased over the years, creating a vast landscape of competition. Potential clients have a large number of bail agencies to choose from. The competitive nature of the bail industry and the money involved has even led some agents to turn to illegal bail practices.

It wasn’t always as competitive as it is now. One long-time bail agent told me that back in the 1970’s and 1980’s the different bail agencies were very cordial with each other. If two agents showed up to the court to post a bond, but then realized it was for the same client, they would work together to figure out who was called first.  Today, that sort of cooperation is hard to imagine. Almost all bail agents I talked to said that the bail business was fiercely competitive. In order to be a good bail agent, one had to be passionate, to love people and love what they do.  But they also had to have the motivation to work independently and bring in large volumes of business.

So how exactly do bail agencies compete with each other? In this post I will examine the four main ways: through location, advertisement, word of mouth, and discount rates. I think it is important to understand how exactly the bail bond industry operates, and how this affects our community, before we decide to make changes to the industry. Continue reading “The Dog-Eat-Dog Bail Industry”

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






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?”