Calif. County Moves Forward With Bail Reforms
Santa Clara County officials announced that they would change the rules and free hundreds of jail inmates who are awaiting trial. Could this level of reform come to SoCal next?
The Board of Supervisor’s unanimous vote makes Santa Clara County one of the leaders in the state’s burgeoning bail reform movement.
Civil rights groups, who have long argued that pretrial detention simply means that lower-income defendants cannot afford to make bail and must therefore remain behind bars, backed the move.
Palo Alto Police Chief Dennis Burns added his support as well. “It’s about trying to have the right people in jail, and keeping people who aren’t a public safety risk out of jail,” he said. On the other side of the fence, the California Bail Agents Association led the opposition.
Advocates point out that crime in the Golden State has increased significantly, and defendants who are out on bail are at least partially responsible for the increase. “They’re going down a bad road,” opined Bad Boys Bail Bonds CEO Jeff Stanley.
62 percent of Santa Clara County jail inmates are incarcerated awaiting trial, a proportion that is similar to most other counties in California.
Why Pretrial Release Matters
Incarceration has significant economic and emotional costs. People who are in jail cannot work and typically lose their jobs due to absenteeism, and self-employed persons cannot keep tabs on their businesses. Moreover, people who are in jail obviously cannot spend time with their families outside the jail’s limited visiting hours.
From a legal perspective, pretrial release is quite detrimental to an effective defense. First, incarcerated defendants cannot consult with their lawyers in private and cannot assist in the preparation of their own defenses.
Second, once the trial comes around, many jurors assume that incarcerated defendants did something wrong and that there is strong evidence against them. Defense attorneys can sometimes, but not always, prevent the jury from knowing about the pretrial detention.
Setting Bond in California
These same challenges are an issue in Los Angeles County, largely due to prison overcrowding. In fact, most male convicts are released after serving only 10 percent of their sentences; female inmates serve about 5 percent of their time. Anecdotal evidence abounds about persons who are released only a few hours after they arrested and go on to commit new crimes, albeit many of these offenses are of a non-violent nature.
L.A. County arrestees are either released on their own recognizance, which basically means that they promise to appear for future court dates, or they must post security.
Theoretically, OR release is mandatory in non-capital cases unless the offender poses a risk to public safety or there is no reasonable assurance that the offender will return for court. Pragmatically, only first-time, non-violent offenders receive OR release, in most cases.
Typically, defendants must either post the entire amount of the bond in cash or work with a bail bond agent. In most bail bond arrangements, the defendant must pay 10 percent of the bond and abide by certain conditions that the bail bond company imposes.
All felony arrestees, and misdemeanor arrestees who remain in jail, must be arraigned within forty-eight business hours. At the arraignment, the judge entertains motions for bail reduction.
These motions are premised on the Eighth Amendment, which states that authorities cannot impose “excessive bail” in criminal cases. According to case law from the United States Supreme Court and other bodies, some of the factors to consider are:
- Severity of Offense: The theory is that persons charged with rather minor offenses are more likely to defend themselves in court than persons charged with serious offenses.
- Amount of Evidence: Similarly, if the state’s case is unusually strong, defendants may be more inclined to take their chances by fleeing the jurisdiction.
- Flight Risk: People who have roots in the community are less likely to flee than those with money, passports, and personal or professional contacts outside the jurisdiction.
- Threat Level: DUI is an example of offenses that may endanger the public at large; sometimes, the threat is specific (e.g. the defendant has threatened witnesses in the case).
- Affordability: Defendants are not automatically entitled to bail they can afford, but judges may hear evidence on the issue and consider it in their decisions.
In all these cases, bail cannot be a means of punishment as it exists solely to guarantee the defendant’s appearance at trial. Therefore, to ensure public safety, some judges release defendants if they submit to GPS monitoring, drive with ignition interlock devices, or agree to other conditions. Because of jail overcrowding, and if the defendant is willing to accept such conditions, Los Angeles County judges are often willing to either reduce the bail or order OR release, even in rather extreme cases.
Defendants are entitled to pretrial release as a matter of law, unless there are extenuating circumstances.