Bail reform: Awaiting trial, but can’t afford bond? Silicon Valley moving to free more suspects
By Tracey Kaplan and Eric Kurhi
The Mercury News
October 4, 2017
SAN JOSE — While state and federal lawmakers continue to grapple with bail reform, Santa Clara County moved ahead Tuesday with a wide-ranging plan that includes creating a nonprofit fund to post bonds for low-risk defendants who otherwise couldn’t afford it.
The fund is believed to be the first in California, cementing the county’s role as a statewide leader in a national reform movement. Bail reform advocates, including local police chiefs and civil rights leaders, argue that bail has become an unfair burden on the poor, allowing moneyed defendants to stay free while those who can’t afford bond languish behind bars awaiting their day in court.
“They are one of our model sites in the country, pushing the envelope as far it can go,’’ said Cherise Fanno Burdeen, CEO of the Maryland-based Pretrial Justice Institute, adding that she knows of no other jurisdiction with such a fund in California.
The California Bail Agents Association opposes the changes, saying the critics are trying to dismantle a system that works at no cost to taxpayers. The fund would include $250,000 in seed money to be matched by private parties or nonprofit sources, and potentially yearly funding to cover some administrative expenses.
In addition to the fund, county supervisors Tuesday unanimously approved starting a search for a nonprofit to run a program that would help ensure a defendant’s appearance at all court hearings, including by providing bus passes and other means to get to court.
The board also backed a pilot program allowing corrections officials — rather than judges — to free low- to moderate-risk inmates and equip them with electronic ankle bracelets to monitor their whereabouts.
The county also will install a credit/debit machine for inmates who want to charge their bail instead of paying nonrefundable fees to a bondsman. That could be in place by spring.
However, the most far-reaching aspects of the plan are a ways off. The bail fund, which will be run by a community-based organization with $250,000 in county seed money — isn’t expected to open until at least next fall. The organization would be required to raise matching funds from private donors. Sources said potential donors include the Future Justice Fund, founded by the creator of Instagram and his wife after he sold the company.
The ankle bracelet program is set to start in January, but sheriff’s officials who run the Department of Correction, may not be ready by then, sources said.
About 8.2 million of the 11 annual arrests across the country are for relatively low-level misdemeanor offenses, according to the Pretrial Justice Institute.
Advocates contend that more people can be released without impacting public safety after being reviewed under a risk-assessment protocol developed by Santa Clara County’s Pretrial Services Department.
For instance, in Washington, D.C., where 80 percent of defendants are now released without bail, 88 percent make all scheduled court appearances and avoid new arrests, and 99 percent avoid new arrests for violent crimes.
But the California Bail Agents Association opposes the changes, among other concerns, points to a recent uptick in California’s violent crime rate.
However, California’s violent crime rate remains comparable to levels seen in the late 1960s. And property crime was down 2.9 percent and remained lower than it was in 2010, before a wave of reforms easing the state’s tough-on-crime approach began.
In San Jose, violent crime last year rose 14.3 percent from 2015 — greater than the 4.1 percent rise seen nationwide, according to FBI figures released last week. However, property crimes in San Jose were down slightly more than 1 percent — similar to the national decrease.
Community bail funds, though, will not be used initially for people facing felony charges. According to the staff report, community bail funds elsewhere are limited to bail amounts of $500 to $2,000 — but that could be adjusted “given the high local bail” compared with what’s seen other areas. It would be a revolving fund, with money taken out to pay bail then returned when the defendant completes the required court appearances.
Garry Herceg, deputy county executive, said it was hard to estimate how many people would be affected by the bail reforms. As of Sept. 1, there were more than 2,350 post-arraignment, pre-sentenced defendants in custody. But the majority of those are in on felony charges, with about 260 in for misdemeanors.
The fund would only be used for those of little means to pay bail themselves.
“Obviously everyone is not going to be eligible — we’re not going to use it for a Google executive,” Herceg said. “We’re also not going to allow high-risk individuals. Those are obvious cases. But repeat low-level offenders — do we want to use jail for that? The criminal justice system is still trying to figure that out, what is the acceptable level of risk.”
Jeffrey Stanley, owner of Bad Boys Bail Bonds, said he fears people will be released with no guarantee that they’ll come back to court.
“We ensure they come back, at no cost to taxpayers,” he said after Tuesday’s board meeting. “We ask people to co-sign for them, so someone is responsible.”
He added that low-level crimes shouldn’t be brushed off.
“Nobody starts off robbing banks,” Stanley said. “It starts with petty theft, drug usage. Santa Clara County used to be one of the safest metro areas in the state but we’ve seen a dramatic increase in crime. We got to stop being light on crime and hold people accountable.”
The county’s staff has urged officials to eliminate for-profit bail entirely and to push state lawmakers to do the same. According to their report, the bail industry is highly lucrative in Santa Clara County. Last year, bail agents posted more than 7,500 bail bonds for bail amounts totaling about $198 million. For posting these bonds, commercial bail bond agents “may have pocketed as much as $19.8 million in nonrefundable premiums in 2015 alone,” the report said.
Santa Clara County’s plan, however, probably won’t take a big bite out of the industry’s profits — at least at first — because of the initial focus on misdemeanor cases. The idea is to change the culture by gathering statistics on what officials expect to be a low rate of new offenses or no-shows in court.
Kentucky, Oregon, Wisconsin and Illinois are among the jurisdictions that have banned the for-profit businesses, replaced it with systems allowing defendants to deposit 10 percent of their bail amounts directly with the court — and to get the money back if they make their court appearances.
Inmates awaiting trial cost urban counties like Santa Clara County tens of millions annually to house. The county estimates that it costs $15 per day per defendant to supervise those released from jail while awaiting trial and $3 per day for electronic monitoring via ankle bracelets, compared with at least $159 per day per inmate for those who remain behind bars.
The plan is the result of a two-year effort by a bail release work group set up by the county and spearheaded by Supervisor Cindy Chavez, which included voices from activist groups such as Silicon Valley De-Bug as well as law enforcement, jail and court officials.
Chavez said it’s critical for the county to take up the matter because of inaction at the state level.
“We’re having this conversation at a local level because it couldn’t be done at the state level,” she said. “And local government is the best place to figure out what works.”
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