If LA Wants to Reform Its Pretrial Detention Strategy, Who Would Stand in the Way? by Matthew Fleischer

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EDITOR’S NOTE: A few years ago, Florida’s largest counties noticed that the majority of the people crowding their jails were awaiting trial. The majority of those being detained were not charged with serious offenses, which meant they could have bailed out, but they simply couldn’t afford to do so. So they languished behind bars and the county paid the tab. Facing tight budgets and overcrowded jails, those same Florida counties decided to institute a system of pretrial release for the people who qualified. Now, many California counties are looking at similar strategies, most particularly the state’s largest county, our own Los Angeles.

Of late, Sheriff Baca appears to have grown genuinely serious about pretrial alternatives, especially following the recent release of the report on the matter by prison and jail population expert, James Austin, a report with which the sheriff closely cooperated.

So will it be a go? After all, given our own jail overcrowding and tight budget issues, who would oppose such a plan, especially if it’s worked well in other complicated jurisdictions?

WitnessLA reporter Matt Fleischer has the answer to that very question.

(Oh, and in addition to what Matt tells you, you might want to ask Florida.)

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WILL THE BONDSMAN LOBBY TRY TO STOP PRETRIAL RELEASE?

by Matt Fleischer

It’s been more than a year since California Governor Jerry Brown signed the AB 109 prison realignment plan into law, which allows non-violent, non-serious, and non-sex offenders to serve their sentences in county jails instead of state prisons. Since that time, county governments have been struggling to keep up with the overcrowding in their jails caused by the influx of inmates serving their sentences locally. And they aren’t happy about it.

In a budget address this week, Manhattan Beach City Manager Dave Carmany, forced to hire a new jailer due to a rising local inmate population, argued that AB 109 was straining the municipal criminal justice system—especially the jails—and was somehow responsible for a local crime wave. “AB 109 and its effect on sentencing,” he wrote, “has created a sense among criminals that the risk is worth the consequence.”

According to a study released this week by The Center on Juvenile & Criminal Justice, a San Francisco based a criminal justice reform think, however, the problem of jail overcrowding far predates AB 109. According to the report, in 2010, 71 percent of inmates in California’s various county jail systems were not yet convicted of any crime—rather they were charged and are awaiting trial. We’re talking about a population of roughly 50,000 people out of a total jail population of 71,000. Keeping these individuals incarcerated costs taxpayers $100 a day per head. Save the calculator. I’ll do the math for you: that’s $1.85 billion a year.

Obviously, some are dangerous people accused of serious crimes, who can’t be safely released into the public sphere. But plenty are fit for release with a pretrial system of check-ins and electronic monitoring. So why aren’t they being let go? The commercial bail industry and its powerful lobby are the prime roadblock, argues the CJCJ. Simply put, the bail companies don’t want to lose the income that pretrial release would eliminate.

Jails are now more often utilized as a facility to house those awaiting resolution of the charges filed against them, as opposed to sentenced offenders who are serving their time. The commercial bail system has significantly led to this increase of the unsentenced jail population.

Moreover, the commercial bail system has discriminated against poor and middle class defendants and the monetary terms of bail imposed results in racially disparate detention. For instance, Latino and African American defendants are more likely to be held in jail than whites because they cannot afford to post bail. The mortgage crisis has further exacerbated the disparate detention of the poor and people of color. Historically, individuals and families used their homes as collateral to raise funds to pay for bail. Unfortunately, high rates of bankruptcy, foreclosure, and plunging home values in low-income communities mean that fewer people are able to use their homes as collateral to post bond.

The Center on Juvenile & Criminal Justice report isn’t the first to delve into this territory in recent memory. In 2011, the VERA Institute published a report on the pernicious role private bail plays in the LA County Jail system. Among other interesting tidbits, the report noted that in order to ease overcrowding, the LA Sheriff’s Department instituted a minimum bail of $25,000 before they will allow an arrestee to be booked at the Inmate Reception Center. Judges responded by simply raising their bail settings to $25,000—even for nonviolent crimes. Standard bail requested by prosecutors for many low-level felonies like hand-to-hand drug sales, if the accused has priors, is often as high as $250,000

This series of moves virtually guaranteed that poor individuals with no house to put up as bond stayed in jail for months—even years— at a time until their trial date. Although private bail bond companies will post bond, they will only do so for a 10 percent, non-refundable fee up front. If you don’t have the money—and there are plenty of folks out there who don’t have $2,500 cash to spare, much less $25,000–you’re staying in jail.

The Vera report advised that pretrial detention be based on actual risk assessment, rather than an arbitrary bail fee. A year later, with the more recent release of Dr. James Austin’s plan to close Men’s Central Jail, the Sheriff’s Department is taking this idea seriously. Austin identified 1,000 non-violent pretrial inmates who could be released with electronic monitoring. This kind of system costs $2.50 per day instead of $100.

Dale Miller of the California Bail Agents Association, however, counters that electronic monitoring is unreliable.

“In Texas, a recent study showed that close to 70 percent alerts were false alarms. If you get all this noise, how do you know what’s a real violation?”

Miller also argues that the 71 percent pretrial detention figure in California is misleading.

“It’s true that 29 percent in county jails are convicted. But that doesn’t mean 71 percent are pretrial. You got probation and parole violators, ICE holds. These people are counted as pretrial, but a pretrial agency can’t release them.”

Miller says there are better ways to deal with jail overcrowding than unbonded pretrial release. “My issues are that bails tend to be way too high. LA County’s bail schedule is huge. [The bail bond industry] can get people out of custody for much, much smaller amounts of bond, and keep tabs on them without taxpayers footing the bill.”

All that said, the bail bond industry claim they are not actively lobbying against Austin’s plan. Miller was unfamiliar with the specifics of the report, as was Dennis Bartlett of the American Bail Coalition. But, Bartlett told me, “Jim Austin is considered an objective source, whose research I usually trust.”

Bartlett added the caveat, however, that the idea of electronic monitoring without a surety bond is a bad one.

“In the state of Georgia, a GPS monitoring system can only be used in combination with an surety bond. That system seems to work very well. If you’re release people haphazardly, then you’ve got people going everywhere with no one keeping a serious eye on them. I’d have reservations about that.”

However, since “surety bond” is just another fancy way of describing the same pay-for-freedom scheme that got us here in the first place, it isn’t clear what change Bartlett’s strategy would represent.

As of now, the Austin plan does not call for surety bonds to accompany electronic monitoring. If surety bonds suddenly become a sticking point during negotiations with the LA County Board of Supervisors and the CEO, we’ll have a good idea why.

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PS: In 2010 NPR’s Laura Sullivan did an excellent 3-part series on the issues surrounding pretrial release and the bail system that’s worth a listen. The last part of the series had to do with the battle over Florida.

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***The photo of Dog the Bounty Hunter is courtesy of his fan club site: dogthebountyhunter.com. He is not actually a bail bondsman, yet he’s nevertheless undeniably picturesque and he often works for bail bondsmen retrieving bail jumpers, hence the frail rationale for his visual inclusion here. We have no idea how he stands on pretrial release.