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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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.”

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?”

The Price of Avoiding Incarceration

In my previous posts, I have discussed the general stages of the justice system, the fines and fees associated with the pretrial stage as well as the fines and fees associated with being in custody. To complete the discussion regarding the fines and fees associated with the life cycle of a criminal defendant’s journey through the justice system, I will be focusing on how money affects a person once they have been sentenced and are eligible for diversion programs. This post will illustrate how money is typically a factor in determining whether a person serves their punishment in out-of-custody diversion programs and the ramifications that this practice has.

Alternative sentencing is the general umbrella term that is used for different avenues of punishment rather than incarceration. The goal of alternative sentencing is to identify and use effective sanctions that address an offender’s underlying problem in efforts to advance public safety and the chances of reoffending. Alternative sentencing is similar to deferred entry of judgment pursuant to California Penal Code sections 1000.-1000.6. Deferred entry of judgment for adults is a special drug and alcohol education program that; offenders who commit certain drug crimes can have their charges dismissed upon completion of the program.

Santa Clara County frequently utilizes both the Sentencing Alternative Program, Inc. and the Sheriff Weekend Work Program when allowing individuals to serve alternative sentences in lieu of jail time. Both programs highlight that the programs benefit the community, the offender, and the state since the offenders pay to participate. Programs like these can be incredibly beneficial for an offender since they allow time to be served on the weekends or nights, allowing the participants the ability to keep their jobs, homes, and maintain family ties. However, these benefits come at cost. For example, the Sentencing Alternative Program charges, along with various miscellaneous fees, a sliding fee ranging from $35-$250 based on the number of hours an offender is assigned to complete. The cost to participate in the Sherriff’s Work Program is not publically available, however, their site does relay that the program incurs no cost to Santa Clara Citizens or the Department of Corrections as participants pay a fee.

The imposition of these fees puts indigent and poor defendants at a disadvantage: even if they are eligible for the program on the basis of their sentences, they will not be able to participate because of inability to pay. This disadvantage does not fall solely on those who have no money, but also those who are struggling to feed, clothe, and house themselves (and their families) while working multiple jobs. The inability to serve alternate sentences can have detrimental effects on these populations as jail time would likely cause them to lose their jobs and create difficulty securing employment upon release.

These alternate sentencing programs help offenders avoid jail and prison time, allowing them to escape the very system that some argue creates more crime. They can also be beneficial for the community, public safety, reducing recidivism and even the fiscal budget. However, these benefits should be tangible for all those eligible, regardless of a person’s ability to pay. Otherwise, our system is effectively handing out harsher punishments for those who are poor.

Policy

The nation’s current criminal justice system is punishing poor and low-income individuals at a disproportionate rate. Not only are people being thrown into jails and prisons because they cannot afford to pay various fines and fees, but these same people are facing a much harsher time in custody than their affluent counterparts.

There have been numerous studies to show that there is a correlation between the time an individual spends in custody and the likelihood that he will commit another crime. Imprisoning people based on a failure to pay and racking up fines and fees against them while they are in custody is not benefiting society in any way: incarceration is costly and the tremendous debt that people are incurring is almost never repaid. Moving to an individualized punishment system similar to Finland, where fines and fees are assessed based on ability to pay and income, would not only help save taxpayers’ money, but it would be a system that actually treats individuals fairly.

 

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”

Paying for nothing: How misdemeanor defendants end up paying bail bond companies when they shouldn’t have to.

In 2014, the City of San Jose made 10,823 misdemeanor arrests.  Considering the population of pretrial misdemeanants in Santa Clara County is in the 300’s at any given time, there are thousands of these defendants out of custody on some form of bail.  In this post, I will begin by giving background on misdemeanor crimes in general.  I will then discuss how the bail system operates for misdemeanor defendants and where it fails them.  Finally, I conclude this post with policy recommendations that could prevent some of the harm that arises from the system as it stands now.

Misdemeanors are crimes punishable by one year or less in custody to be served at county jail.  Misdemeanors are distinguishable from felonies because the associated sentence and fines are statutorily limited, they have a less serious effect when used as a prior conviction on a person’s record, and they may not limit an individual’s job and housing prospects the way a felony conviction can.  We have distinguished misdemeanors because, as a society we have decided that these crimes warrant less severe punishment.

This isn’t to say that an individual accused of a misdemeanor isn’t facing serious consequences.  While any conviction will count as a prior, some misdemeanors are “priorable.”  That means if the defendant is convicted of that crime and subsequently accused of the same crime, the punishment is automatically increased according to statute.  For example, if a person is caught driving on a suspended license for the second time within five years, California statute mandates that the punishment increase from five days in county jail to ten days.  Additionally, a convicted defendant may be required to register with local law enforcement if the offense was drug, gang, or sex-related.  Not only do misdemeanor convictions have real legal consequences, they also have consequences for an individual’s personal and professional life.

The law also treats misdemeanors differently from felonies when it comes to bail.  While own recognizance release is available in all cases except where the defendant is accused of a capital offense, there is the presumption of own recognizance release for misdemeanor cases.  This means that the defendant need only to promise to appear at their next court appearance in order to be released prior to trial.  In order to deviate from this presumption, a judge must state on the record the reason for placing the defendant on supervised O.R. or imposing money bail.  Although this presumption exists in the law, in practice, defendants who could be entitled to own recognizance release sometimes end up posting money bail.

Continue reading “Paying for nothing: How misdemeanor defendants end up paying bail bond companies when they shouldn’t have to.”

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”