Eye on the Courts: Why Bail Reform Could Be the Key to Changing the System

Bail

Of all of the problems that face our current criminal justice system, one may have to go down the list to think about bail reform – however, it is both a bigger problem and a bigger inequity than one might think.

A large percentage of the population that is held in jails currently are there on pre-trial custody situations. These are people that have not been convicted of any crime. Many will ultimately be released for time-served or probation.

As the Sacramento Bee in an editorial asked in 2011, “Who, really, needs to be detained before trial, and who should be allowed to remain in the community while his or her case proceeds? Counties need to take a hard look at the risks arrestees pose to public safety while they await trial.”

The Bee added, “In Sacramento County, 31 percent of the pretrial population has had no previous arrests, or only one arrest. Forty-three percent have had no prior convictions. Sixty-three percent were arrested for nonviolent property, drug or alcohol crimes. Most are local people and are not a flight risk.”

The Contra Costa Times reported last year that roughly 65-70 percent of those in county jail custody are awaiting trial and that number is up to 85 in the Bay Area.

One of the big problems with bail, as San Francisco Public Defender Jeff Adachi told the Vanguard last November, is that it is class-based. Those who can afford to put up the bail get released from jail. The poor have to be incarcerated.

“It’s unfair because people who are released from jail are simply those who have money. You can get out on bail if you’re charged with murder if you have the money,” Jeff Adachi said. “And yet if you’re charged with criminal trespass, and you don’t have $500 to post bail, you’re going to be in jail.”

“The presumption of innocence in this country is meaningless because for most of our clients who are poor people, they are incarcerated pending their trials,” he said. “It places much more pressure on them for innocent people to plead guilty. It creates a disincentive for cases to be fully investigated and litigated.”

As Maya Scenwar wrote in the NY Times this past weekend, “Mayor Bill de Blasio of New York unveiled a plan to decrease the population of the Rikers Island jail complex by reducing the backlog of cases in state courts. About 85 percent of those at Rikers haven’t been convicted of any offense; they’re just awaiting trial, sometimes for as long as hundreds of days.”

However, she argued that, while this is a positive step, his plan “ignores a deeper question: Why are so many people — particularly poor people of color — in jail awaiting trial in the first place?”

For the most part, “it is because they cannot afford bail.” “79 percent of pretrial detainees were sent to Rikers because they couldn’t post bail right away.”

She writes, “This is a national problem. Across the United States, most of the people incarcerated in local jails have not been convicted of a crime but are awaiting trial. And most of those are waiting in jail not because of any specific risk they have been deemed to pose, but because they can’t pay their bail.

“In other words, we are locking people up for being poor. This is unjust. We should abolish monetary bail outright.”

There some that argue that bail is necessary to prevent flight before trial, “but there is no good basis for that assumption. For one thing, people considered to pose an unacceptable risk of flight (or violence) are not granted bail in the first place. (Though the procedures for determining who poses a risk themselves ought to be viewed with skepticism, especially since conceptions of risk are often shaped, tacitly or otherwise, by racist assumptions.)”

She also cites Washington, D.C., which makes virtually no use of bail where “the vast majority of arrestees who are released pretrial do return to court, and rates of additional crime before trial are low.”

There are fairness issues at play here too. “Not only do those who are in jail before trial suffer the trauma of confinement, but in comparison with their bailed-out counterparts, they are also more likely to be convicted at trial. As documented in a 2010 Human Rights Watch report, the legal system is substantially tougher to navigate from behind bars. People in jail face more pressure to accept plea bargains — often, ones that aren’t to their advantage — than do those confronting their charges from home.”

There are also inequities. For instance, studies “have shown that black defendants are assigned higher bail amounts than their white counterparts. This discrepancy is compounded by the fact that black people disproportionately live in poverty and thus unduly face challenges in paying bail.”

The Bee in 2011 found, “In the pool of 1,294 local pretrial detainees in Sacramento County, the 437 arrested in violent, sex or weapons- related cases are rightly held in jail without bond. But that leaves 812 people who a judge has said could be released if they paid bail, but remain in custody because they can’t pay. Bail in Sacramento County is extraordinarily high – only 9 percent of the 812 have had bail set under $20,000.”

As the Bee put it: “The county needs to screen every person booked into county jail, and release low-risk individuals, with conditions such as home detention or regular phone checks to make sure they attend court hearings.”

San Francisco last year implemented new bail amounts. The San Francisco Examiner reported last summer, “The rationale behind the changes, according to court officials, was driven by concern for the public’s safety as well as legal requirements dictating an annual review of bail and a desire to put The City on the same page with other neighboring jurisdictions.”

“The vast majority of the offenses listed on this sheet are violent crimes,” said Ann Donlan, a spokeswoman for the court. “The purpose of bail is twofold — to protect the public’s safety and to ensure that the defendant returns to court. The court’s concerns and responsibilities are different than Mr. Adachi’s concerns and responsibilities, and that is the nature of the judicial system.”

But Jeff Adachi argued, “The nature of the crime alone in and of itself doesn’t justify an increase in bail. The bails for violent crime are already sky-high, so doubling or tripling the bail amount isn’t justified. Why did they believe it was necessary to increase bail from last year? We’re not talking about an adjustment for inflation. The bail for battery on a police officer, which amounts to unlawfully touching an officer, quadrupled from $5,000 to $20,000. Why? What’s the justification for that?”

Jeff Adachi believes we need to move away from money bail and implement the types of reforms that New Jersey and Maryland have instituted.

He said, in San Francisco, they are litigating every case where their client might be eligible for bail “because we feel that under the law, clients are entitled to a full bail hearing.” He added, “Judges have to understand what presumption of innocence means.”

The presumption of innocence means that people are innocent until proven guilty. There are a percentage of individuals who probably do pose a risk of flight or danger to the community. Those individuals can reasonably be confined without bail pending trial.

But for the remainder, why not simply lease them either on OR (own recognizance) or some form of monitored version of OR? That would eliminate the inequities of bail while at the same time freeing up the jails to house only those who have been convicted of crimes or represent a true threat to the community – regardless of their access to money.

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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27 Comments

  1. Tia Will

    I know essentially nothing about how our bail system works, but am wondering about the impact of even less direct effects. I would appreciate more information from anyone knowledgeable about the system.

    1) What happens if the person jailed is the primary provider for a family ? Does this mean that for a non violent crime, we have now consigned a family to public assistance ( which we pay for )?

    2) If the individual is the sole caretaker of minor children, we now have these children in the foster system ( which we pay for )?

    3) What happens to the bail posted by a person who is determined to be innocent ? Do they receive the entire amount back, or is their some kind of processing fee, which essentially represent a tax on having been erroneously arrested and detained in the first place ? When bail is arranged by a bondsman, how much of a “cut” do they take ?

    It would seem to me that just as the prison system exists as an industry, we have created the potential for quite a little industry around people many of whom have been convicted of absolutely nothing.

    1. hpierce

      BTW Tia, it is rare that someone is found to be factually “innocent”… happens, but rare.  The correct terms are “guilty” or “not guilty”… there are lots of folk who did the deed, but it could not be ‘proven’ to the satisfaction of a jury.  Doesn’t mean the deed wasn’t done by the individual charged.

        1. Davis Progressive

          you can also petition the court to give you a finding of factual innocence if you are acquitted and the evidence shows you weren’t just not guilty but actually innocent.  naturally its rare, but happens.

        2. Miwok

          One day my ex came home from her day as Investigator in the PD Unit very excited. I asked what was going on and she said “We finally have an innocent client”.

          They fought hard for her..

      1. Tia Will

        hpierce

         it is rare that someone is found to be factually “innocent”

        I know that this may be parsing words, but I believe it to be important.

        In our system, one is innocent until proven guilty. Therefore, if one is not found to be guilty,  they are, by definition, innocent. This is what I think is too often lost in our judicial system. The presumption is of guilt if charged, and therefore punitive treatment starts as soon as accusations are made, not after the individual is proven guilty.

    2. DavisBurns

      Since Clinton abolished welfare, I wonder what kind of public assistance is available? Food stamps are really a subsidy for farmers, food processors and food outlets. If the family is at risk of homelessness, they can get some assistance but it is pretty limited. Medi-cal will offer a really lousy afordable care plan.  There are food banks where a family can pick up some food once a week and there are free meals available if you know where to go.

      IMHO bail is an income stream for bail bondsmen and the courts.  Similar to traffic tickets where. $40 speeding ticket costs the driver $244 with money going to the courts for services, a coirt building fund, the county and the city.  Meanwhile if the driver can’t afford to pay, the charges quickly escalate to $900.

  2. PhilColeman

    The only legal and historical justification for the existence of the posting of bail for release is the attempt to ensure the charged defendant will appear for trial after release. That’s the ONLY reason and the concept dates back hundreds of years to ancient England.

    This column topic unfortunately drifts off here and there to promote various social issues and by advocates posing as experts on the bail system. For the sake of simplicity and allow us to transfer those agenda items elsewhere and, instead, keep our focus on what alternative can be employed to ensure charged defendants will appear in court when required.

    One useful and relevant part of this story are the stats that show percentages of folks who obediently appear for their court date with just a signed promise to appear. That’s encouraging!

    How about this for an idea? Except for a few, chosen class, of major felonies and those who do pose a great risk to society should they be released from custody pending trial, everybody gets a “get out of jail” card the first time. Should they not appear as promised, they revert to the bail system of posting cash for any and all subsequent arrests.

    One freebie, and that’s it! Oh, by the way, the bail bond industry is big bucks. Expect a major push-back from the bail lobby with any notion of “no longer screwing the little guy.” There is a lot of money being squeezed out of the little guy and his beleaguered family and friends.

     

    1. hpierce

      To Phil’s point about the ‘business’ aspect of Bail Bonds…  https://www.1hourbailbonds.com/available-365-days-sacramento-bailbonds/  that’s just the first that comes up on Google.  Look in your Yellow Pages and see how many companies are out there… “bail” is a pledge to appear.  Bond companies charge ~ 10% (varies widely) for the amount bonded for.  But, as you can see, there can be ‘no money down’, etc.  $20,000 bond DOES NOT MEAN you have to pay that amount to stay out of jail.  It means you have to pledge that amount, which will be forfeited if you don’t show up for your court appearances.

      1. Tia Will

        hpierce

        It means you have to pledge that amount, which will be forfeited if you don’t show up for your court appearances.”

        But then how is it determined that you have enough assets to be able to pay if you don’t show up. If it were just about the “promise”to pay, then no one judged to be eligible for bail would be in jail, because of course, everyone would promise that they would pay if they didn’t show up.  I am clearly missing something here !

      2. Davis Progressive

        the problem is a huge number of people can’t afford to pay the 10%, so instead we end up paying for them to be housed in the jail at a substantial annual cost.  a lot of these people end up in custody for six months to a year pending trial.  a lot of those cases end up resolving for less than prison time.  there is a huge cost to the taxpayers right there.  and then there’s the fairness issue.

        1. iyah

          just to further clarify what people in custody who hVe not been convicted of a crime face – loss of job, resulting in loss of a home be cause a mortgage or rent isn’t paid. Loss of possessions unless you have someone who can take care of things for you. If you are a parent the immediate loss of contact with children and possible loss of custody… Maybe temporary, which also means trauma to a child. The so called collateral damage created by this process is staggering when actually measured. But wait what happened to the presumption of innocence?

        2. sisterhood

          My family member would have been in county one year if we could not have afforded the bail. Solano County goofed the first day he was wrongfully arrested;  some stupid clerk checked the box for him to be held without bail. Our lawyer had that corrected, and he was released after posting bail. If we could not have afforded a lawyer, he would have been held without bail.

          He had to put his house up for collateral. Luckily he had plenty of equity in it.

          The bail system is so unjust, it’s obscene.

    2. TrueBlueDevil

      Mr. Coleman makes a reasonable suggestion, and I agree that we shouldn’t cause havoc on someone’s life for a relatively minor offense.

      Given the millions of people in our state illegally, this is another sub-component worthy of addressing. I’d say someone charged with crimes who is not a citizen has a much higher chance of fleeing.

      (There also is the issue of multiple identities (which I have little knowledge on how we deal with), like the guys in Sacramento who murdered the Sheriffs. How does law enforcement handle multiple aliases from someone here illegally with limited identification?)

      1. David Greenwald

        Generally speaking what happens in the case of an immigration status issue, is that the individual is not released. They are placed on an ICE hold and then the matter gets transfered to an immigration court when the criminal case resolves.

        For instance, in the Nan-Hui Jo case, the immigration officials simply picked her up as soon as she was released from Yolo County.

  3. zaqzaq

    Did I miss something but what is “OR”?  How does it work?  Do we use it in Yolo County?  What percentage if criminal defendants get bail in Yolo county?  I really do not care what that guy in SF thinks about the system in SF.  How many people just do not show up in court?  How big a problem is it?  If you want to discuss the bail system why not do a comprehensive analysis on what we are doing in Yolo county.  Is it a problem here or is it a slow Monday in Davis.

    1. Davis Progressive

      there are two types of OR.  one is unsupervised, you get released on your own, agree to terms and conditions and you have to show up for all appearances and commit no crimes.  if you fail to appear or commit a new crime, you can get your OR status revoked and go into custody plus potentially get additional penalties.

      then there is supervised OR which is like being on probation – you have to agree to terms and conditions and check in with probation regularly.

      we use it in yolo.

      don’t know what percentage of criminal defendants get bail, but if you’ve ever been in the court, you’ll see a lot of in-custody defendants and a lot of out of custody either on bail or OR.

      ” I really do not care what that guy in SF thinks about the system in SF. ”

      why not?  he’s done the research.  regardless it’s a statewide and nationwide system.

      “How many people just do not show up in court?  How big a problem is it?”

      it happens, but it’s fairly infrequent.

       

      1. PhilColeman

        Agree fully that OR”s are a routine alternative to setting a specific bail and that this options is used a lot. It’s used in Yolo and every other county that I know. The fact that OR’s were not mentioned at all in the column–and yet that was what the essence of the column was seeking–points to the bias and omission of the column presentation from the outset.

        OR, means, released on your”own recognizance.” It’s practically the same as getting a traffic citation, where you are released from custody or detention after you promise to appear in court or pay the fine, as directed.

        Most of you reading this would qualify for an OR, not that I suggest you try. If you are a citizen of long local residence, have a job, family, or own property, and have no history of frequent arrests or defaulting on fines or court appearances, you get a virtual automatic OR.

        1. Tia Will

          If you are a citizen of long local residence, have a job, family, or own property, “

          So virtually be definition, this is a system that favors those in stable situations, for example those who may be known either personally or by reputation to those making the OR decision. This system, by its very nature favors a given set of people while disadvantaging those who may be new to the community, may not belong to the same professional or social circles, and yet may be equally law abiding. I think that if anything is demonstrated by this system, it is the inequities of the current system.

      2. zaqzaq

        What research has the guy in SF done?  None was identified in the article.   From what you and Phil have described concerning the OR available in Yolo county would it be fair to believe that those individuals who have not been released by a judge on OR are the ones who the judge deems dangerous or have a history of repeat offenses and/or not showing up for court in the past.  If I were  judge I would probably not believe a person who promised to come to court if they had a history of not showing up in the past or continuing to commit crime.  As a member of the public I would also not be particularly happy if a person was arrested for a new crime where I was the victim if the criminal was out of jail on OR or bail.  If my car was broken into or I was assaulted and a judge let that person out of jail for the same or similar conduct I would be really pissed.  Maybe we should eliminate the bail system and just go with an OR program where a judge decides who gets out of jail based on factors such as danger to the public, likelihood of continuing to commit crime while released and likelihood of showing up for court.  After all Mr Green murdered the domestic violence victim when he was released on bail that she paid for.  I did a google search and that case came up.  It was even covered in the Vanguard.  I did another google search and came to a Yolo county web page that describe a pre-trial services release program that was managed by our probation department.  It mentioned an eligibility criteria.  So I guess I am not sure what the point of the article was since it looks like there is a way for non-violent criminals to be released from jail already in practice.  Maybe David should do an article on the current pre-trial release program the explains how it works and why certain policies are in place in that program.  He might decide to support it or criticize it.  That would just be one more opinion.

    2. Davis Progressive

      bail is a big issue when the majority of the space in jails is taken up with pre-custody cases, then you’re using a lot of resources on people who (a) have never been convicted of a crime and (b) will not have to serve post-trial custody time.  and those decisions are made in part not by safety concerns but by who can afford to pay.  seems like there are better expenditures of resources.  this isn’t a slow monday issue, this is a big thing that hasn’t gotten enough attention.

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