Illegal Bail Practices

I was driving last Sunday when an ad came on the radio for Aladdin Bail Bonds. Intrigued, I turned up the volume in time to catch the ad telling listeners to go with their agency, because other agencies only give you “gobbledygook.” I smiled to myself. The “gobbledygook” of the bail industry is what I had been thinking about for weeks. Heck, my whole criminal law and policy class had been thinking about it for weeks. Let me tell you, dear reader, about the “gobbledygook” of the bail industry, in the form of all the illegal practices that get bail agencies into trouble.

As I talked about in my last post, the bail industry is fiercely competitive. This has led some bail agents to turn to illegal bail practices to stay in the game. Just last year, a sting brought down 31 bail agents in 5 of our local counties (Santa Clara, Alameda, Mon20800521029_9d77204ea8_nterey, San Benito and Merced County). In Santa Clara County, the sting involved some of our most prominent bail agencies: Aladdin Bail Bonds, All-Pro Bail Bonds, and Bail Hotline Bail Bonds. The sting, ironically named “Operation Bail Out,” was put together through cooperation between the California Department of Insurance and the Santa Clara County District Attorney’s office. This cooperation was long overdue. The California Department of Insurance had been receiving complaints against bail agents for years. As early as 2013, there were so many complaints that the Department of Insurance thought it necessary to send out a “reminder” letter of solicitation laws to all licensed bail agents in California.

Even local bail agents themselves had been pushing for better enforcement of bail laws. The former President of the Santa Clara County Bail Association told me that he had been recommending enforcement of the laws for years. Frustrated with the illegal practices of other bail agencies, he had been pushing for there to be a Department of Insurance regulatory officer placed in our area. There currently is none, and having one would help the Department of Insurance investigate claims of illegality. He even supported the idea of bail agencies paying a $10 fee on every posted bond that would be paid to the Department of Insurance to fund this. But his complaints and suggestions got nowhere.

So what exactly gets bail agents into trouble? Let’s examine the ways. Continue reading “Illegal Bail Practices”

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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.

Conclusion:

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.

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”

Reclassification as a Means for Integration: The Positives of Prop 47

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If you are in jail, imagine having your prior felony reclassified as a misdemeanor so that you no longer face six years in prison for stealing $10 worth of merchandise (anecdote to be shared below). Or, if you are released in society, imagine having your criminal record adjusted so you are no longer barred from receiving federal welfare, student grants, or medical care. (PDF pages 9-10). You also are no longer excluded from employment in care facilities, including child-care jobs, and you might no longer face automatic disqualification if potential employers discover your conviction records. (Although technically it is illegal for an employer to discriminate against an individual based on an individual’s criminal record, it certainly still happens). Further, if you are an undocumented immigrant, a parent, and facing deportation, your adjusted criminal record may qualify you for protection under Deferred Action for Parental Accountability (DAPA). (PDF page 5). Also, if you are undocumented, facing deportation, and entered the United States before you were sixteen, your adjusted criminal record may qualify you for protection under Deferred Action for Childhood Arrivals (DACA). (PDF page 5).

All four groups of people described above did not have these freedoms or protections prior to Prop 47’s passage. In addition to reducing prison and jail populations along with infrastructural costs, Prop 47 strove to change certain individuals’ felony records, improving the social and financial status of these individuals who had previously committed non-violent drug possession or petty theft crimes. Reclassification is not instantaneous, but it helps nonviolent offenders receive the financial support and employment opportunities necessary to become more fully integrated in society.

Continue reading “Reclassification as a Means for Integration: The Positives of Prop 47”

Why accepting credit cards for bail won’t help poor individuals secure pre-trial release.

One of the recommendations made by the Santa Clara County Bail Working Group is to accept credit cards or debit cards at county jail facilities. [Revised Bail and Release Report, Page 10].  Defendants with access to a credit card will be able to avoid using commercial bail bond agencies altogether. This would allow individuals who are arrested on non-felony charges to post their bail using their own funds with more ease.[1]  While this provides an alternative to commercial bail bond companies, it may not be what is best for every defendant.

Before moving forward, I would like to point out that, under the proposal from the Bail Working Group, this form of payment would only be available to individuals arrested for misdemeanor conduct who are entitled to own recognizance release.  This means they should not have to pay anything unless the court makes a finding on the record that money bail should be imposed for public safety reasons or to ensure his or her appearance in court.  This post will address what an individual should consider before using a credit card, assuming that they are not eligible for own recognizance release.  If an individual does not have the access to the funds in their account and has a credit card, they would have the choice of using that credit card to pay the entire amount or using the services of a commercial bail bond company.

Some of the considerations a defendant should make before using a credit card to pay their bail are:  the interest rate of their credit card; the amount of time before they get that money back; and the fact that they may not receive the entire amount paid at the conclusion of their case.

While using a credit card may be the better option in some cases, paying 10% to a bail bondsman may be the better option for others.  After weighing these considerations, a defendant may find that using a commercial bail bond company to secure release prior to trial is a better option in some instances.  I do not address bail forfeiture (i.e. the process of losing your bail deposit when a person fails to appear in court).  I will be addressing the above-mentioned issues based on the assumption that the individual makes all of their court appearances. Continue reading “Why accepting credit cards for bail won’t help poor individuals secure pre-trial release.”

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”

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”