April 11 2012 09:48 AM

Changes to prison system could spur much-needed bail reform

Law student Clayton Carr participated in California Western’s Bail Project,
which seeks to help indigent defendants who can’t afford bail.
Photo by Kelly Davis
Clayton Carr makes his way through the maze-like system of San Diego's Downtown jail—up nine floors, through two security gates, back down seven floors—to a corner desk in the jail's inmate-processing office. Before he sits down in the small space that he'll share, for the next three hours, with a large recycling bin and piles of discarded printer-cartridge boxes, he collects "yellows"—carbon copies of the forms that are filled out when an inmate's booked.

He settles in and starts flipping through forms, looking for three things: when and where the person will be arraigned and what they were charged with. Since he'll need to be at the arraignment, anyone heading to a courtroom other than the one Downtown is out. So, too, is anyone listed as "transient" on the form's address line. Out, too, is anyone charged with a violent crime.

"Second-degree burglary—probably not a good candidate," Carr says as he flips past a page. "Domestic violence— the judge generally doesn't look kindly on that." 

Since 2000, California Western School of Law's Bail Project has sent students like Carr into the jail to look for indigent defendants who, without a reduction in bail, will spend the time between arrest and trial behind bars. Good candidates for bail reduction are individuals charged with a nonviolent crime who have ties to the community through work, school and family.

"You're not arguing guilt; you're not arguing responsibility. You're arguing this person will go through the process," Carr says.

The only other chance to gather this kind of information is at arraignment, where a public defender has just a few minutes to scan a client's file and pull together reasons why a person deserves reduced bail.

"Assembly-line justice," is how Coleen Cusack, an attorney and one of the Bail Project's coordinators, describes the felony-arraignment process. "You have the prosecutor who's had days with the facts of the case and then stands up in court and says this is how terrible this guy is. And then on the other side, you have a public defender who's just met the client; the judge knows this is the first time they've met and any information the public defender's passing on hasn't been verified. So, it's the defendant standing there in the jail jumpsuit trying to convince the judge to let him out of jail, and just the fact that he's in custody makes him less believable."

In 2006, the Bail Project was awarded a $148,000 grant by Congressmember Duncan L. Hunter. According to the data collected as required by the grant, in just one trimester, folks released with the assistance of the Bail Project saved county taxpayers more than $100,000 in jail meal costs alone.

"We were able to document what could be done if you actually did this on a realistic scale," says Lawrence Benner, a California western professor and one of the Bail Project's co-founders.

With the grant, the Bail Project was able to run year-round with multiple shifts daily. But, when congressional earmarks went away, so, too, did the grant. Now the Bail Project operates one trimester a year. "And so, you know, with six students only able to cover 18 hours [a week], that's just a drop in the bucket," Cusack says.

Folks advocating for a more equitable criminal justice system have long argued that bail only underscores the disparities between rich and poor: Those who can afford bail are released; those who can't remain in jail.

"The poor person, if they want to go to trial, they're going to stay in jail for… six weeks, two months, maybe more, depending on how complicated the case is," Cusack says. "They could lose their job, get evicted, have their kids taken from them."

Some people will plead guilty simply to get out of jail.

"They're given this opportunity," Cusack says. "They can plead guilty without admitting guilt. They can plead guilty just to take advantage of a plea bargain. The poor person is going to take that deal—not because they're guilty, but because they want to get out of custody."

In a report released last month, the ACLU of California examined how 53 of the state's 58 counties plan to implement AB 109, the Public Safety Realignment Act, which seeks to reduce the state's prison population by roughly one-third by May 2013. To do this, offenders convicted of non-violent, non-sexual offenses will be kept in county jail rather than sent to prison.

According to numbers from the state, 71 percent of people held in California jails on any given day, on average, have yet to be sentenced, making the pre-trial population an obvious target for reduction.

"We shouldn't be housing people who are safe to release," says Margaret Dooley-Sammuli, a policy advocate for the ACLU of San Diego and Imperial Counties and co-author of the report.

San Diego's realignment plan includes asking the court to modify its bail schedule—the presumptive bail amount for each crime—find a better tool than the simple form that's currently used to determine whether someone's a flight risk and implement a pretrial monitoring system, similar to probation, that could be used instead of bail.

Dale Miller, a bail agent and board member of the California Bail Agents Association (CBAA), applauds San Diego's plan to ask the court to lower bail amounts, though he'd like to see it happen sooner rather than later; San Diego Superior Court won't look at the bail schedule again until December.

"If you just lower the bail so that we can do our job, so that we can make the system work, you're going to have more people appearing in court, more accountability; victims will appreciate it because the perpetrators are going to go to court and answer to the attorneys," he says.

Currently, each county sets its own bail schedule, resulting in disparities from county to county. Get caught in San Diego for possessing a controlled substance, for instance, and your presumptive bail is $5,000. Get caught for the same crime in Orange County and it's $20,000. In San Bernardino, it's $25,000. Meanwhile, write a bad check in San Diego and your bail will be set at $20,000. Commit the same crime in Fresno County and it's only $1,000.

"They're all over the map across the state," Dooley-Sammuli says. "So, the question of are they too high—they're certainly too high for a lot of folks in lots of places. But that's not even the central question, really. The central question is: How can we make better decisions about the people we keep behind bars?"

Though the bail industry supports lower bail amounts, it's not a fan of bail alternatives. On its website, the California Bail Agents Association blasts counties' efforts to expand pretrial release programs.

"If it's done right it works," Dooley-Sammuli says of supervised pretrial release. "And, of course, the bail industry will continue to say it doesn't because they have a financial stake in the status quo."

How they'll handle low-risk defendants awaiting trial who can't afford bail is still being discussed by the county's Community Corrections Partnership (CCP), a group made up of representatives from the county's Probation Department, the court, the District attorney's office, the Sheriff's Department—any agency that's involved in the criminal-justice system.

"The discussions are in the early stages and many options are being considered," says county spokesperson Sarah Gordon. "No final decisions have been made, and any recommendations would be approved by the CCP before implementation."

Benner says he hopes the county might consider the Bail Project as part of its plan.

"Progress occurs very slowly and in very small steps," he says. "You just have to be patient and be persistent."

Email kellyd@sdcitybeat.com or follow her on Twitter at @citybeatkelly.


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