Many have taken for granted the use of bail to allow the accused to be released, rather than serving their pre-trial time in custody. But the push for reform has emerged because the system is inherently unequal – people are kept in custody not because of danger to society or flight risk, but rather because of the inability to pay.
In short, the system frees the rich (or those who can afford to put down the amount needed for a bail bond) and keeps the poor in custody.
We saw the inherent problems of the system first hand last week as we watched the arraignment of three youths charged with gun and gang offenses, from an arrest the week before in West Sacramento.
In the first case we saw, before the gang case, a man had been arrested on possession and multiple violations of probation. The probation department recommended that the man be held on bail rather than released on his own recognizance (OR).
The defense attorney argued that the guy has a job, family and ties to the area – he’s not a flight risk. Plus, it’s not a prison case as it is possession of drugs. And, as the defense pointed out, he’s never missed a court appearance. The man had no history of violence.
But the commissioner, a guy named Kent O’Mara, told the defense that he was not going to go against probation’s recommendation, so he put a $55,000 bail on him.
This case provides us the exact argument in favor of bail reform. This is not a person who represents a threat to the community. He represents no flight risk, he has always made his appearances. Moreover, it is not even a prison crime and yet he’s going to sit in jail waiting for his case to be adjudicated, based simply on an inability to pay for bail.
The person deciding this matter is an appointed commissioner, not even a judge. He stated plainly he was not going to overrule probation in this matter. So, not only is the system unjust, it relies on relatively powerless individuals to impose fairness.
We saw a similar problem when the three-defendant gang and gun case came on. Here, two of the defendants were said to have played a minor role in this incident.
Attorney Richard Lansburgh, representing Jesus Baeza, and Rod Beede, representing Joshua Cadenas-Lopez, both made the arguments that their clients were minor players in this incident. Mr. Lansburgh would call this a broad brush case – one person is a gang member, therefore everyone involved is a gang member.
He would argue that his client was, in fact, not a gang member. He noted that Mr. Baeza had no adult record and only a very minor juvenile record. He currently holds a job and is a productive citizen. Mr. Beede joined Mr. Lansburgh in his objection. He noted that his client not only holds a job but has a young son.
They were requesting release on OR.
Probation strongly opposed release on OR, based on the charges. Deputy DA Jay Linden noted that, for the purposes of bail, the court has to assume the charges are true. He said that, given the charges, the defendants are a danger to public safety and they are charged with being gang members.
Probation indicated that, based on the severity of the charges, there was no pretrial service report.
Commissioner O’Mara followed the recommendation by the probation department and denied the requests for OR.
Bail was set at $100,000 for both Mr. Baeza and Mr. Cadenas-Lopez – $50,000 for the gun charges and $50,000 based on the gang enhancement. Ricky Hernandez, represented at this hearing by Dean Johansson of the Public Defender’s office, was given $170,000.
In this case, Mr. Lansburgh and Mr. Beede both made the case that their clients played minor roles in this case, that neither had extensive criminal records and that they had jobs and families to support. And yet, despite not yet having been convicted of a crime, based solely on the nature of the charges rather than an assessment of the defendants as individuals, the court made the decision to deny bail.
We have argued that there are other ways to handle pre-trial custody. For most people, OR is probably sufficient. They are released and promise to make their appearances and obey all laws. If they fail to do so, then they can be put back into custody.
For some, supervised OR might be more appropriate, which would force the defendant to check in with the probation department as a condition for their release.
For some, they might need more restrictions and monitoring, and we have house arrest and ankle monitoring as possibilities.
Finally, there are those who simply represent too much of a threat to public safety or flight risk; for them, they get held in custody.
The advantage of doing it this way is that it is based on actual risk and threat rather than ability to pay, and if they prove unable to handle themselves, then putting them into custody is the only remedy – but at least in that case, it will be based on conduct rather than ability to pay.
In less than three weeks, Jeff Adachi, the San Francisco Public Defender and Phil Telfeyan, Executive Director of Equal Justice Under Law, a Washington, D.C.-based civil rights organization that fights systemic inequalities in the legal system, will speak at the Vanguard’s annual dinner, this year on bail reform.
Last year, the organization filed a federal lawsuit on Oct. 28, 2015, on behalf of Riana Buffin and Crystal Patterson, who were unable to afford their bail after being arrested in San Francisco last year.
The lawsuit alleges that San Francisco’s bail system is unconstitutional because it violates the principle of equal protection under the law.
San Francisco’s fixed bail schedule, set by San Francisco Superior Court judges and ranking among the most expensive in the state, sets bail amounts based on offense and does not take individual circumstances or public safety into account, according to the lawsuit. Approximately 50 people per day and 18,000 people per year are booked into San Francisco County Jail. About 85 percent of inmates have not yet been convicted. Because they cannot afford bail, they can remain locked up for months while awaiting trial, often losing their housing, jobs, or children.
The lawsuit argues that appropriate conditions of release – including pretrial release services and text message or phone call reminders of court dates – can save taxpayer dollars while also increasing public safety and court appearance rates. The lawsuit also calls for appropriate alternatives to pretrial incarceration, such as electronic monitoring, intervention and rehabilitation programs, stay-away orders, and home detention.
—David M. Greenwald reporting
