“Not in it for Justice” How California’s Pretrial Detention and Bail System Unfairly Punishes Poor People H U M A N R I G H T S W A T C H

“Not in it for Justice” How California’s Pretrial Detention and Bail System Unfairly Punishes Poor People

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APRIL 2017 ISBN: 978-1-6231-34600 “Not in it for Justice” How California’s Pretrial Detention and Bail System Unfairly Punishes Poor People

Summary ....................................................................................................................... .... 1 Wrongful Pretrial Detention ....................................................................................................... 3 Coerced Guilty Pleas .................................................................................................................4 A Discriminatory System ...........................................................................................................4 High Bail .................................................................................................................................. 5 Bail: An Ineffective Tool ............................................................................................................ 7 Profile-Based Risk Assessment Tools ........................................................................................ 7 Reform Requires Individualized Procedures ............................................................................. 8 Key Recommendations ..................................................................................................... 10 Methodology ................................................................................................................... .. 11 I.

Background ................................................................................................................. ... 15 Pretrial Detention in the Context of Over-Incarceration ............................................................ 15 II.

Pretrial Detention in California ..................................................................................... 23 Pretrial Detention Process ....................................................................................................... 23 How Judges Set Bail ................................................................................................................ 31 II.

Bail Leads to Jailing People Who Are Not Guilty ............................................................ 42 Bail Keeps People in Jail Who Never Have Charges Filed ......................................................... 46 III.

Bail and Jail Result in an Unfair Justice System ............................................................. 51 Bail Coerces People into Giving Up the Right to Trial ................................................................ 51 Plea Deals Show Custody Decisions Are Not About Danger ...................................................... 57 Pretrial Detention Strengthens the Prosecution ....................................................................... 58 Judiciary’s Institutional Interest in Pretrial Detention ............................................................... 59 IV.

Bail Devastates Poor and Middle-Income Defendants and Households ......................... 65 Paying Bail Overburdens Poor and Middle-Income Households with Debt ............................... 69 V. Does Bail in California Serve the Legitimate Purposes of Pretrial Detention? ................. 78

Protecting Public Safety .......................................................................................................... 78 Failures to Appear .................................................................................................................. 81 VI.

Profile-Based Risk Assessment ................................................................................... 87 Predicting the Statistical Likelihood of Pretrial Misconduct ..................................................... 87 Judges Disregard Tools .......................................................................................................... 92 Profile-Based Risk Assessment Tools Are Not Individualized ................................................... 93 Racial Bias and Profile-Based Risk Assessments ..................................................................... 95 Profile-Based Risk Assessment Tools Can Be Used to Increase Jail and Supervision Populations ............................................................................................................................................. 99 VII.

A Better Way: Increased Cite and Release and Individualized Risk Assessment ..........104 Profile-Based Risk Assessment Should Not Be Part of the Decision ........................................ 107 IX.

International Human Rights Law ................................................................................ 109 Recommendations ........................................................................................................... 114 To California Lawmakers ....................................................................................................... 114 To California Lawmakers and County and City Officials .......................................................... 114 To Public Defenders’ Offices ................................................................................................. 116 Interim Recommendations ..................................................................................................... 117 Acknowledgments .......................................................................................................... 120

1 HUMAN RIGHTS WATCH | APRIL 2017

Summary On the night of November 2, 2015, Maria Soto’s 18-year-old son Daniel went out with friends and did not come home. At 1:30 p.m. the next day, Maria finally got a call: Daniel had been stabbed and was in the hospital—and was under arrest. A man had accosted Daniel and his friends outside of a restaurant. They had fought, and the man pulled a knife. Cut and bleeding, Daniel staggered up to a police officer, who called an ambulance and arrested him. Apparently, the man with the knife had gotten to the officer first.

Once he arrived at the hospital, Daniel received minimal medical treatment—Advil for pain and occasional new dressings for his wound. On November 10, he was taken to court, where he pled “not guilty” to a felony assault charge. The judge set bail at $30,000. Maria, a single mother who worked as a stenographer, made enough to pay rent and bills for herself and her two sons, but had no savings and no property to sell or use as collateral. No bail bondsmen would give her a payment plan she could afford.

Maria felt horrible, knowing her son was hurting, locked up in jail, and there was nothing she could do to help him. “It was terrible. He’s my son. I wasn’t eating. I wasn’t sleeping. I just worried about him.” Meanwhile, Daniel also could not sleep, due to the pain from his injury and the hard jail bed. He was assigned a top bunk and struggled to climb up to it. Sometimes pus would ooze from his wound due to the exertion. He asked his mother to bail him out, but understood she could not come up with the money. “I just had to ride it out,” Daniel said. He missed school and slipped behind in his studies.

On Thanksgiving, Maria and the rest of the family ate their meal without him. Finally, on December 17, over six weeks after his arrest, Daniel had his preliminary hearing— the first opportunity in court for the judge to hear proof of the crime. The judge dismissed the case, saying there was no evidence he committed a crime. Daniel was able to go home, but

“NOT IN IT FOR JUSTICE” 2 he had lost a semester of school and a month-and-a-half of his life to jail for a crime he did not commit, all because his family did not have money to pay for his freedom. *** Tens of thousands of people arrested for a wide range of crimes spend time locked up in jail because they do not post bail. Nearly every offense in California is bail-eligible, yet many defendants cannot afford to pay. In California, the majority of county jail prisoners have not been sentenced, but are serving time because they are unable to pay for pretrial release.

This report concludes that California’s system of pretrial detention keeps people in jail who are never found guilty of any crime. The state jails large numbers of people for hours and days against whom prosecutors never even file criminal charges. People accused of crimes but unable to afford bail give up their constitutional right to fight the charges because a plea will get them out of jail and back to work and their families. Judges and prosecutors use custody status as leverage to pressure guilty pleas.

As one Californian who went into debt to pay fees on $325,000 bail for a loved one who was acquitted said, the actors in California’s bail system are “not in it for justice.” Those locked up pretrial are overwhelmingly poor, working class, and from racial and ethnic minorities. California’s median bail rate is five times higher than that of the rest of the country. There is a clear correlation between the poverty rate and the unsentenced pretrial detention rate at the county level in California.

The state is also plagued by profound racial disparities in pretrial detention rates due to racial disparities in arrest and booking rates. The rate at which black people are booked into California jails is many times higher than for white people—for example, it is nine times higher in San Francisco. Bail and pretrial detention in California subj ect arrestees to unfair treatment, arbitrary detention, wealth discrimination, and other violations of their basic rights. People unable to pay bail remain in jail regard less of guilt or innocence.

Poor and middle- income people incur debilitating debt to gain the advantages to fighting their cases that pretrial freedom bestows. There is an alternative to California’s system of money bail and pretrial detention. Given the large numbers of people locked up in California despite never being charged with an

3 H UMAN RIGHTS WATCH | APRIL 2017 offense, as well as the large numbers of low-level offenders who are jailed, the best reform would divert the great majority of defendants out of custody through extensive use of release with citations. The remainder would have detailed, individualized hearings before a court could order pretrial detention. This alternative to money bail as the determinant for custody would reject the current trend of using profile-based statistical predications of risk instead of money bail as the basis for pretrial detention or supervision decisions.

Instead, it would rely on detailed, individualized hearings to determine whether any pretrial defendant may be deprived of their liberty. Wrongful Pretrial Detention From 2011-2015, police in California made almost 1.5 million felony arrests. Of those, nearly one in three, close to half-a-million people, like Daniel Soto, were arrested and jailed, but never found to be guilty of any crime. Some spent hours or days behind bars. Some spent weeks; others, months and even years. The cost to taxpayers of this pretrial punishment is staggering: each day a person is held in custody costs an average of $114.

In six California counties examined in detail in this report (Alameda, Fresno, Orange, Sacramento, San Bernardino, and San Francisco), the total cost of jailing people whom the prosecutor never charged or who had charges dropped or dismissed was $37.5 million over two years. Over a quarter-of-a-million people sat in jail for as long as five days, accused of felonies for which evidence was so lacking prosecutors could not bring a case. Many were victims of baseless arrests; others, mistakes of judgment or misunderstandings of the law.

The remainder had cases filed, but lacked sufficient proof of guilt, resulting in eventual dismissal or acquittal after weeks and months in jail. A large percentage of these not guilty people either had to pay bail, often plunging themselves or their families into crushing debt, or had to contest their cases while locked up in county jails. These nearly half-a-million people spent time in jail at taxpayer’s expense, missing work, not picking their children up at school, not caring for elderly parents, missing classes, and subject to violence and miserable conditions, because they did not post bail.

They were punished for crimes they did not commit, not because they were too dangerous to release,

“NOT IN IT FOR JUSTICE” 4 but because they could not come up with money to pay for their release, in cases where the criminal justice system ultimately found them not guilty. Coerced Guilty Pleas Many Californians accused of crimes, but unable to afford bail, give up their constitutional rights to fight the charges because a guilty plea will get them out of jail. Prosecutors often argue for high bail because a defendant is “too dangerous to let out” before trial, then offer the same “dangerous” person a time-served, go home sentence in exchange for a guilty plea.

Some judges set bail a defendant cannot possibly pay, to encourage guilty pleas for the sake of rapid processing of cases. Pretrial detention causes higher conviction rates mainly by coercing people to plead guilty in order to get out of jail sooner. In the six counties analyzed from 2014-2015, 71-91 percent of misdemeanor and 77-91 percent of felony defendants who stayed in jail until they received their sentence were released before the earliest possible trial date. They all pled out before they had a chance to assert their innocence.

Pretrial detention allows courts to process cases more quickly, but distorts justice by coercing guilty pleas. A Discriminatory System California’s system of money bail and pretrial detention discriminates based on wealth. Rich people simply pay bail and buy their freedom. People of more modest means sometimes can cobble together the money to pay a bondsman the 8-10 percent non-refundable fees normally charged to secure their release. In the six counties examined in detail, 70-80 percent of arrestees could not, or did not, pay bail.

Those who did not pay were either eventually released from jail in other ways, such as on their own recognizance or by court orders, or stayed in jail until they were sentenced. People at liberty can help with their defense; they can go to work, go to school, attend a drug rehabilitation program or enroll in psychological counselling, all of which can show the judge there is no need to punish harshly; they appear in court showered and groomed, in their own clothes, not jail uniforms. People who cannot afford bail have none of these advantages.

They have barriers communicating with their lawyers; cannot help locate witnesses and evidence; cannot participate in programs to improve themselves and make themselves look better in the

5 H UMAN RIGHTS WATCH | APRIL 2017 court’s eyes; and cannot earn money. They sit in jail, surrounded by misery, feeling stress about the case, unable to get calm advice from family and friends. They cannot sleep well. They will look like criminals when they appear in court, shackled or behind a glass partition. Many judges are likely to see them as just another defendant to process. The case of Daria Morrison and Sarah Jackson illustrates the income-based discrimination in California’s money bail system. Both women were arrested together and charged with a robbery; neither had a prior criminal record.

Yet their fates were very different. Daria had sufficient help to pay the bondsman’s fee, was released from custody, and offered a reduced charge that will result in a dismissal in one year by the prosecutor. Her co-defendant, Sarah, equally culpable for the crime, remained behind bars, unable to pay for bail. She ended up pleading guilty to two serious felony charges. The bail system is also racially discriminatory. Though violent crime has dropped steadily since the early 1990s, California continues to put people in jails and prisons in massive numbers.

On a single day in 2015, California had 201,000 people behind bars, with 1.15 million arrests throughout the year, causing many thousands more to cycle through the jails during the year. This high rate of incarceration disproportionately affects black people, who are over 6.5 times as likely as white people to be locked up. Data analyzed by Human Rights Watch from a variety of California counties shows jail booking rates for black people are significantly higher than for white and Latino people. High Bail In this time of increasing incarceration, the use of pretrial detention has also increased dramatically.

In California, consistently over 63 percent of prisoners in county jails have not been sentenced, but are serving time because they cannot afford to pay bail. Studies have calculated California’s median bail as being five times greater than that for the rest of the country. California law does not require a judge to inquire into a defendant’s ability to pay, and judges rarely do when setting bail amounts. Instead, they rely on arbitrarily determined bail schedules that set amounts to coincide with the level of the charge.

While judges have discretion to depart from them, they tend to treat the schedules as mechanical formulas to apply in most cases. Experts and advocates―and even some judges―told Human Rights

“NOT IN IT FOR JUSTICE” 6 Watch that bail in California is set to keep people in jail, coerce guilty pleas, and make court machinery move more rapidly. Most defendants rely on bail bondsmen to get out of detention. Bondsmen charge a fee of up to 10 percent of the actual bail amount, which is not refundable, even if the case is dismissed or charges are not filed. Bondsmen charge as much down-payment as they can, sometimes the full amount of the fee, or work out payment plans that they enforce with the threat of revoking the bond and sending the accused back to jail.

This system often means that poor and middle-income families must borrow from friends and family, raid retirement plans, cut back on food, bills, and holiday presents, miss rent payments, and sell personal property to pay for their loved one’s freedom.

While the numbers are staggering, the true measure of the harm caused by California’s system of money bail is in the stories of the people who have been through this system: • Jose Alvarez sat in a crowded jail cell for two full days, unable to afford bail, after being tasered and arrested during a political protest, only to be released because he had committed no crime. • Nelson Perez spent two years in jail fighting a bogus rape charge because he did not have money to pay his bail. He lost his house and his truck.

His 11-year-old son had to go into foster care. • Jason Miller spent a weekend in jail on baseless drug charges.

He was homeless and lost his personal property. • Nancy Wilson was arrested twice on felony charges, and twice borrowed money from her grandmother to pay non-refundable bail bond fees totaling $3,500, even though the prosecutor did not file charges against her either time. • Justin Lee, unable to pay his bail, pled guilty to a felony assault for time served so he could get out of jail to be with family as soon as possible—ev en though his attorney had obtained a video that he said demonstrated his innocence.

7 H UMAN RIGHTS WATCH | APRIL 2017 Bail: An Ineffective Tool The stated purposes of setting bail are to protect public safety by preventing potentially dangerous people from causing harm before their cases are adjudicated and to prevent people from fleeing the jurisdiction or otherwise evading their obligation to go to court. But bail is not a particularly effective tool to meet these goals. Lack of in-depth, individualized hearings means judges do not have sufficient knowledge to assess risks with accuracy, defaulting to bail schedules and overusing detention.

Vast numbers of people are jailed pretrial due to “dangerousness,” while only a tiny percentage actually commit violent crimes while awaiting trial. People with money pay for release regardless of how dangerous they are. Few people actively evade court. Most who fail to appear do so due to negligence or error, homelessness or mental disabilities, or because they cannot miss work or find child care. Many who miss appearances eventually return to court on their own. Imposing bail improves court appearance rates in moderate amounts, but detains many more people than is necessary.

Other pretrial services, like reminder calls, are proven to reduce missed court dates without incurring the costs of locking people in jail. International human rights law permits the use of pretrial detention and money bail, but only if they are limited and are consistent with the right to liberty, the presumption of innocence, and the right to equality under the law. A person's liberty may not be curtailed through arbitrary laws or the arbitrary enforcement of law in a given case. International human rights law condemns discrimination based on race, ethnicity, gender, and wealth.

Decisions about pretrial detention must be grounded in reasoning that contains specific individualized facts and circumstances, and not by reference to simple formulas, patterns, or stereotypes. Profile-Based Risk Assessment Tools Many who seek to reform California’s system of money bail and pretrial detention are turning to profile-based risk assessment tools. These take information about the accused, compare it to known behaviors of other people with similar characteristics, and generate a prediction about risk of future criminal conduct or missed court appearances.

The predictions are statistical estimates based on a profile.

“NOT IN IT FOR JUSTICE” 8 On the surface, these tools claim to avoid human biases and facilitate release of more people from pretrial detention, while promising rapid decision-making. But these tools risk being a sophisticated form of racial profiling that produce biased outcomes because they ask questions implicating race, and because the underlying information evaluated, based on policing and law enforcement, reflects a system that is itself riddled with racial bias.

If arrest and conviction data is racially biased, the tools that use this data to make decisions about who stays in jail and who gets released will generate racially biased outcomes. The tools provide only statistical predictions based on non-contextual information and do not allow for explanation of prior criminal history. For example, a person who missed a court date because their return slip had the wrong day but came to court two days later would get the same negative score for failing to appear as someone who fled the country to avoid court.

The profiles may miss specific, serious threats that do not appear on the surface of the criminal history, as someone with a minimal criminal record may represent an extreme danger in the given circumstances. Despite the veneer of objectivity, the risk scores are subjectively defined and can be manipulated to direct fewer or greater numbers of people into custody or under supervision, depending on the needs of those administering the tools. For example, in Santa Cruz County, the tool was adjusted to double the number of people released under conditions of supervision.

While jail overcrowding provides incentive to use the tools to reduce pretrial detention, given the massive amount of jail construction going on in California, the tools may be used to increase detention in the future. A risk assessment tool can put people under increased levels of supervision or fill jails as easily as it can facilitate release.

Reform Requires Individualized Procedures Instead of profiling and risk assessment by statistical prediction, or jailing people based on their wealth, California should adopt a system that favors release and assesses the risk of danger in an individualized, contextual way. As a default rule, only those accused of serious felonies should merit consideration for pretrial detention in the first place. The rest, with

9 H UMAN RIGHTS WATCH | APRIL 2017 narrow exceptions, should be released from custody at the arrest stage and issued a citation requiring them to appear in court on a particular date. Cite and release would vastly reduce the number of people jailed without having charges filed against them. The few who do stay in custody should have a full adversarial hearing, with an enforceable legal presumption of release absent proof by the prosecutor of a specific need to detain. Defendants should have capable legal representation when they get to court.

The hearing should include testimony about the actual crime, so the judge can evaluate its seriousness and the likelihood of eventual conviction, an ability to pay hearing, and an opportunity to present individualized evidence favoring release or detention based on specific risk of pretrial harm. This proposed system would involve significant changes in California courts’ approach to administering justice, and would be challenging to implement. But the advantages are essential.

These changes would: • Prioritize public safety by causing courts and prosecutors to focus on those defendants who truly pose a danger, while releasing those who do not. • Decrease the harm suffered by families when their loved ones are jailed, and limit financial burdens placed on poor people who pay for their freedom. • Mitigate the income-based discrimination of the current money bail system. • Decrease the number of people, particularly innocent people, coerced into pleading guilty because of their custody status. • Save the public money by cutting jail costs. • Honor the presumption of innocence and treat people in court as human beings, not numbers.

Above all, it would increase the quality of justice in California.

“NOT IN IT FOR JUSTICE” 10 Key Recommendations • Expand legal requirements for law enforcement to cite and release without arrest to include all misdemeanor and all non-violent/non-serious felony suspects, with narrow exceptions, thus limiting the number of people placed in pretrial custody at all. • Establish enforceable standards for setting bail or detaining pretrial, requiring release absent significant proof of a specific danger to the community or specific risk of evasion of court process. • Establish procedures for meaningful hearings on pretrial detention and bail setting, including a testimonial probable cause determination and an ability to pay hearing, as well as opportunity to present mitigating and aggravating factors, while providing sufficient resources for appointed counsel to research, investigate, and conduct these hearings. • Reject the use of statistical predictions of the likelihood of pretrial misconduct as a basis for or factor in setting bail or pretrial detention.

11 H UMAN RIGHTS WATCH | APRIL 2017 Methodology This report is based on research conducted from September 2015-January 2017. Findings are based on 151 interviews. Eighty-six interviews were with criminal justice professionals, including judges, district attorneys and other prosecutors, defense lawyers, including public defenders, probation officers and administ rators, pretrial services pe rsonnel, academic experts, court administrators, policy analysts, law enforcement personnel, and court administration consultants.

Sixty-seven interviews were with people who had direct personal experience with pretrial detention in California as arrestees, prisoners, or immediate family members or partners of an arrestee or prisoner. We also spoke to 21 attorneys and investigators who described the experiences of specific clients, and community organizers who work with people involved in the criminal system and their families. The interviews in total cover experiences in 14 counties in the state.

Just over 50 percent of the interviews of people with personal experience of being detained involved cases from Los Angeles County, as it is by far the county with the largest jail and court system. Berkeley Law students conducted 30 of the interviews contained in this report. Of those who personally faced imprisonment pretrial whose stories we heard either directly or from a family member or an attorney, fifty-five were male and ten were female. Thirty-two were Latino, twenty-four were black, and nine were white. Some had significant criminal records; others did not.

Some were convicted of some crime following their detention; many others were not. Human Rights Watch identified people who had experiences with the pretrial detention system via several sources, including criminal defense attorneys who referred us to their former and current clients, and community organizations that work with people who have

“NOT IN IT FOR JUSTICE” 12 contact with the criminal system. Researchers spent time in court observing proceedings, including bail and detention hearings, and spoke to people they met in court. Interviews were semi-structured and covered a range of topics, including description of the trajectory of the criminal case, efforts to pay bail, impact of detention on the individual and the family, impact of paying bail on the individual and the family, conditions of custody, and impact of custody status on the ability to contest the charges.

The interviews sought to determine if the pretrial detention system caused financial, physical, psychological, and/or penal harm. To the greatest extent possible, researchers reviewed court and attorney files, other court records, jail records, news accounts, and other independent sources of information to verify the case descriptions. Supporting documents are on file at Human Rights Watch.

Human Rights Watch uses pseudonyms for the individuals interviewed and their family members to respect their privacy, minimize the impact of revealing an encounter with the criminal system, including arrest or conviction, and to protect those who are vulnerable. Some of the people we spoke to are in jail or prison, on probation, or live on the streets where they may be subject to retaliation for speaking out about an injustice within the system.

We have also disguised the names of lawyers who spoke about their clients to keep their clients’ identities hidden, and of criminal system professionals requesting anonymity so they could be more forthright in discussing the system and the actions or perspectives of colleagues and superiors. All documents cited are publicly available or are on file with Human Rights Watch. The Policy Advocacy Clinic at U.C. Berk eley School of Law provided outstanding assistance to Human Rights Watch on this report.

Working under the supervision of Clinic Director Jeff Selbin and Teaching Fellow Stephanie Campos-Bui, law students Danica Rodarmel, Da Hae Kim and Mel Gonzalez prep ared a background research memo about money bail and pretrial detention in California, nationally and internationally. The students compiled a list of suggested expert s and other stakeholders in the California bail system, including judges, prosecutors, defense attorneys, law enforcement and non- profit organizations. After training from Human Rights Watch, the students conducted 30 of the interviews contained in this report.

13 H UMAN RIGHTS WATCH | APRIL 2017 To conduct data analysis for this report, Human Rights Watch requested data covering everyone booked into jail in 2014 and 2015 from every county in California. The responses from counties varied greatly as did the quality of the data provided. Many counties were unable to provide data at all, especially the smaller ones. In total, twenty counties throughout the state provided some sort of data. Different counties kept track of different things, and tracked similar things differently. For example, some counties carefully tracked bail amounts, while others did not.

Some counties changed bail amounts to zero when the prisoner posted bond. For inclusion in the analyses, a county must have included data indicating whether there was a no bail hold flagged for each detainee. Otherwise, it is impossible to determine whether a detainee likely had bail set. Each county provided descriptive “booking type” and “release reason” categorical variables using unique codes. Each county coded bookings and releases differently and no county could provide a manual detailing how specific types of bookings or releases should be coded by staff.

Human Rights Watch recoded all booking and release types into new, coherent categories to our best ability, informed by conversations with sheriff’s department staff. Booking types typically fell into categories such as street arrests, en route bookings (bookings coming from or held for other jurisdictions), warrant bookings, parole or probation violations, or re-arrests. For each analysis in the report, notes indicate which types of bookings were included. Counties provided information about all initial booking charges, and for some counties, conviction charges, per person.

For counties that provided additional post-booking charges, only the initial booking charges were used. Offenses were coded as infractions, misdemeanors, non-serious felonies, and serious felonies, as defined in California Penal Code

section 1192.7(c). The most serious crime for each person was identified by first ranking the charges by level of crime and then selecting the first crime listed in the database under the highest ranked level of crime. Our analysis is limited by the data provided by counties, and therefore presents Human Rights Watch’s best estimates for describing jail bookings, bail, and releases in the counties included in the report. Those counties were selected because they provided data that contained enough variables and seemingly accurate data to provide estimates for specific research questions.

“NOT IN IT FOR JUSTICE” 14 In addition to the county-level jail booking data, Human Rights Watch analyzed data from county bail schedules, the California Board of State and Community Corrections, the California Department of Justice, and the Bureau of Justice Statistics’ State Court Processing Statistics. Pretrial detention, as with all aspects of the criminal system, is highly localized, with differences from county to county, courthouse to courthouse, and courtroom to courtroom. Surveying the practices of each of California’s 58 counties and of the hundreds of individual courtrooms is beyond the scope of this report.

15 H UMAN RIGHTS WATCH | APRIL 2017 I. Background Pretrial Detention in the Context of Over-Incarceration Pretrial detention in California, and throughout the country, is a significant part of a criminal system that incarcerates too many people, including people innocent of any crime; discriminates against racial minorities and poor people; and imprisons people for too long.

At the end of 2015: • There were approximately 2,173,800 people in prisons and local jails throughout the United States. 1 • The national rate of incarceration was 870 per 100,000 adults.2 • 6,741,000 adults were under correctional supervision, including parole and probation, a rate of 1 in every 37. 3 These figures make the US the world leader in imprisonment, significantly outstripping overtly authoritarian countries like China, Russia, and Iran. 4 California had the second highest total number of prisoners in the country, behind only Texas, with 550,600 people under correctional supervision, including 201,000 in jail or prison.5 1 Danielle Kaeble and Lauren Glaze, “Correctional Populations in the United States, 2015,” US Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, December 2016, https://www.bjs.gov/content/pub/pdf/cpus15.pdf (accessed March 28, 2017), p. 2. 2 Ibid., p. 4. 3 Ibid., p. 1. 4 Institute for Criminal Policy Research and Birbeck University of London, “World Prison Brief,” undated, http://www.prisonstudies.org/highest-to-lowest/prison_population_rate?field_region_taxonomy_tid=All (accessed March 28, 2017).

The US is first in overall population, leading China, its next closest competitor, by over half-a-million prisoners. However, the data quality on prison populations from China is highly questionable. It is in second place for rate of imprisonment behind only the Seychelles. This website had a much lower prisoner population rate per 100,000 than the BJS number, which would have put the US in first place for rate of imprisonment. 5 Danielle Kaeble and Lauren Glaze, “Correctional Populations in the United States, 2015,” p. 12.

“NOT IN IT FOR JUSTICE” 16 Rates of imprisonment increased dramatically from the late 1970s until just a few years ago,6 though violent crime rates have fallen steadily since their peak in 1992, from 1,055.3 per 100,000 to 426.4 per 100,000 in 2015.7 The racial and economic class dimensions are inescapable.

The incarceration rate for white people, based on 2010 census data, is 450 per 100,000; 831 per 100,000 for Latino people; and 2,306 per 100,000 for black people. 8 The same study revealed a rate of 3,036 per 100,000 for black people in California, compared with 453 per 100,000 for white people.9 Nationally, prisoners overwhelmingly come from the poorest economic class. One study showed the median pre-incarceration income for all male prisoners was 52 percent less than the median income of non-incarcerated men.

The rate for incarcerated women was 42 percent less. 10 As rates of imprisonment have increased dramatically, so too has the practice of pretrial detention.

Nationally, from 1990 to 2009, the use of money bail increased from 37-61 percent. 11 During this time, the percentage of people detained pretrial grew considerably.12 6 Peter Wagner, “State Prison Population in California,” Prison Policy Initiative, May 2014, https://www.prisonpolicy.org/ graphs/incsize/CA.html (accessed March 28, 2017). 7 Crime in California, 2015, California Department of Justice, California Justice Information Services Division Bureau of Criminal Information and Analysis, Criminal Justice Statistics Center, p. 6. Property crime rates declined similarly over this same time period.

The violent crime rate in 2015 is a slight increase from the 2014 low of 393.3. 8 Leah Sakala, Breaking Down Mass Incarceration in the 2010 Census: State-by-State Incarceration Rates by Race/Ethnicity, Prison Policy Initiative, May 28, 2014, https://www.prisonpolicy.org/reports/rates.html (accessed March 28, 2017). 9 According to Department of Justice statistics, black people are arrested at a much higher rate than those of other races.

Bernadette Rabuy and Daniel Kopf, Prisons of Poverty: Uncovering the pre-incarceration incomes of the imprisoned, Prison Policy Initiative, July 9, 2015, https://www.prisonpolicy.org/reports/income.html (accessed March 28, 2017). Other research shows black people subjected to traffic stops more frequently, or searched more frequently with no more likelihood of finding contraband, and booked into jail more often.

Stephen Bingham et. al, Stopped, Fined, Arrested: Racial Bias in Policing and Traffic Courts in California, East Bay Community Law Center, April 2016, http://ebclc.org/wp- content/uploads/2016/04/Stopped_Fined_Arrested_BOTRCA.pdf (accessed March 28, 2017); Clifton B.

Parker, “Stanford big data study finds racial disparities in Oakland, Calif., police behavior, offers solutions,” Stanford News, June 15, 2016, http://news.stanford.edu/2016/06/15/stanford-big-data-study-finds-racial-disparities-oakland-calif-police-behavior-offers- solutions/ (accessed March 28, 2017). 10 Bernadette Rabuy and Daniel Kopf, Prisons of Poverty: Uncovering the pre-incarceration incomes of the imprisoned. 11 Brian A.

Reaves, “Felony Defendants in Large Urban Counties, 2009 - Statistical Tables,” US Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, December 2013, https://www.bjs.gov/content/pub/pdf/fdluc09.pdf (accessed March 28, 2017), pp. 1, 14. 12 Justice Policy Institute, Bail Fail: Why the U.S. Should End the Practice of Using Money for Bail, September, 2012, http://www.justicepolicy.org/uploads/justicepolicy/documents/bailfail.pdf (accessed March 29, 2017), p. 10.

17 H UMAN RIGHTS WATCH | APRIL 2017 Pretrial Detention in California California counties detain pretrial at a far higher rate than the rest of the country.13 In recent years, around 63 percent of prisoners in California jails have not been convicted or pled guilty.14 As with nearly all aspects of the criminal system, these figures are subject to local variations among counties. Inyo, for example has a pretrial detention rate of just less than 40 percent, while Siskiyou’s rate is 87 percent.

Of the larger counties, Los Angeles and Sacramento’s rates are just over 50 percent; Alameda, San Bernardino, and San Francisco’s are over 75 percent; and Riverside and Santa Clara’s rates are in the high 60s- low 70s percent range.15 The total numbers of people detained pretrial in California at any given point in time varies, ranging between 52,000 and 42,000 from January 2014-January 2016. 16 Jails range from having a small number of pretrial prisoners, to housing thousands.17 13 Human Rights Watch analysis of US Department of Justice, Bureau of Justice Statistics, “State Court Processing Statistics: Felony Defendants in Large Urban Counties,” 2000-2009, https://www.bjs.gov/index.cfm?ty=dcdetail&iid=282 (accessed March 28, 2017). 14 Human Rights Watch analysis of California Board of State and Community Corrections (BSCC) data.

BSCC publishes data from its monthly surveys. Counties provide the average daily populations for the month for sentenced and unsentenced jail populations. Human Rights Watch analyzed data from all 58 counties for 2014 and 2015. 15 Ibid. 16 Ibid. 17 Ibid.

“NOT IN IT FOR JUSTICE” 18 Inyo Mono Lassen San Lui s Obispo Del Norte Sonoma Lake Sacrament o Amador El Do r ad o San Di ego Orange Los Angel es Te h a m a Modoc Ca l a ver as Sierra Butte Mendocino Mariposa V entura Tu l a r e Imperial Gl en n Kern Ri ver s i d e Humboldt San Mateo San J oaquin Co l u s a Pl umas Fr e s n o Yo l o Santa C ruz Pl acer T rinity Monterey Marin Santa C lara Co n t r a Co s t a Napa Santa Barbara Sol ano Sutter San Benito S tanislaus Shasta San Bernardino T uolumne Merced Al ameda Nevada Yu b a Madera Ki ngs San Franci sco Si ski you 0% 25% 50% 75% Percent of J ail Population C ounty Population < 100,000 100,000 − 800,000 > 800,000 Average of monthly rates F igure 1: Percentage of county jail population that is unsentenced, 2014−2015 Source: California Board of State and Community Corrections

19 H UMAN RIGHTS WATCH | APRIL 2017 Sierra Mono Modoc Mariposa Inyo Pl umas T rinity Lassen Ca l a ver as Del Norte Amador Co l u s a Gl en n Si ski you San Benito Te h a m a T uolumne Napa Lake Sutter Mendocino Nevada Marin El Do r ad o Humboldt Shasta Santa C ruz Yo l o San Lui s Obispo Imperial Yu b a Butte Madera Pl acer Ki ngs Sonoma Merced San Mateo Sol ano Monterey Santa Barbara S tanislaus San J oaquin Tu l a r e V entura San Franci sco Co n t r a Co s t a Kern Fr e s n o Sacrament o Al ameda Ri ver s i d e Santa C lara San Di ego Orange San Bernardino Los Angel es 0 2,500 5,000 7 ,500 Average Daily Population C ounty population < 100,000 100,000 − 800,000 > 800,000 Average of monthly average daily population reports F igure 2: Average number of unsentenced inmates per day, 2014−201 5 Source: California Board of State and Community Corrections

“NOT IN IT FOR JUSTICE” 20 Human Rights Watch analysis of data from six California counties (see Table 1, below) finds that just 20-30 percent of bail eligible prisoners ended up posting bond.

The failure to post bond comes at a cost to California’s taxpayers: In Sacramento County, the cost of detaining people who were bail-eligible but who did not pay bail was over $44.3 million from 2014-2015. 18 There were wide differences between counties in how prisoners who did not post bond were ultimately released from jail: • People jailed in San Francisco County were more regularly released on their own recognizance or under other pretrial release programs; • Orange County released very few people on their own recognizance or under other pretrial release programs; • In Alameda County, nearly 40 percent of people booked into jail remained in custody until dismissal or were released with no charges filed; • In San Bernardino County, one of every three people booked into jail was released due to court orders to reduce the jail population; • In Orange and Sacramento Counties, higher percentages stayed in custody until their sentences were complete. 18 Human Rights Watch analysis of Sacramento County Sheriff’s Department data.

The calculation used the $113.87 per day cost estimate from the Public Policy Institute of California. The estimate of $44.3 million is an underestimate because it only includes arrests without warrants, violations, or holds. Sacramento County is the only county that provided data on conviction dates which allow for the calculation of time in jail from arrest to release for non-sentenced releases and arrest to conviction for sentenced releases.

Because of the high rates of black people booked into custody, the problems of the bail system have a disproportionate impact and contribute to racial bias in the overall criminal system.

21 H UMAN RIGHTS WATCH | APRIL 2017 Source: Human Rights Watch analysis of county jail booking data. Only includes street arrests and warrant bookings. Cite and release, intoxication bookings, unknown reason releases and holds for other jurisdictions were removed. Percentages may not sum to 100% due to rounding. Human Rights Watch’s analysis of data from several counties revealed no apparent racial disparities in the proportion of detainees that have bail set or post bond.

However, even if all races have bail set and post bond at the same rate, there are profound racial disparities in pretrial detention rates due to significant racial disparities in arrest and booking rates. In each county analyzed, black people were booked into jails at a much higher rate than white people. In San Francisco County, the ratio was nine to one, when controlling for population size. Because of the high rates of black people booked into custody, the problems of the bail system have a disproportionate impact and contribute to racial bias in the overall criminal system.

Table 1: Proportion of all bail eligible bookings by release type (2014-2015) County Total number of bail eligible bookings Post bond OR other pretrial release (supervision) Held until sentenced (inc. time served) Dismissed, discharged, or no file Other Court ordered (including CAP) Alameda 41,206 30% 9% 18% 37% 5% 1% Fresno 22,048 23% 6% 27% 18% 1% 24% Orange 53,590 29% 5% 53% 6% <1% 7% Sacramento 36,685 29% 12% 37% 16% 7% 0% San Bernardino 60,639 20% 14% 31% 3% 1% 31% San Francisco 21,680 25% 26% 19% 26% 3% 0%

“NOT IN IT FOR JUSTICE” 22 Table 2: Bail-eligible jail booking rates per 10,000 county residents by race (2014-2015) City Sacramento Alameda San Bernardino San Francisco Orange Fresno Black 545 511 526 1727 432 641 White 167 96 212 192 92 184 Latino/Hispanic 145 135 199 237 123 257 Asian 51 30 24 51 24 91 Source: Human Rights Watch analysis of county jail booking data. Population data US Census Bureau, 2011- 2015 American Community Survey 5-Year Estimates. Note: Only includes bookings where bail was set. Rates computed with race-disaggregated population data.

23 H UMAN RIGHTS WATCH | APRIL 2017 II. Pretrial Detention in California Pretrial Detention Process Different authorities use their discretion, guided by certain rules, to make crucial pretrial custody decisions at a series of distinct stages in California’s criminal justice system.

The police officer in the field decides whether to arrest or simply issue a citation; the supervisor at the station decides whether or not to set a bail; the prosecutor decides to file, reject, or delay the case; the prosecutor in court decides to request bail or agree to own recognizance release; and the judge decides what amount of bail to set. Additionally, the accused is sometimes able to make a decision whether or not to pay the bail―depending on wealth, fa mily and community support, and willingness to make other financial sacrifices.

Finally, the bail bondsman decides whether or not to offer terms that the accused and their family or supporters can meet. Step One: Police Deployment and Enforcement Choices One set of crucial decisions made long before anyone is arrested relates to police deployment. Police departments have limited resources and make choices about where to concentrate patrols and what enforcement priorities to emphasize. These choices, in an aggregate sense, determine who gets arrested and with what frequency. Nathan Ramos lived in an encampment of homeless people in the Skid Row

section of downtown Los Angeles. 19 Because the Los Angeles Police Department (LAPD) had chosen to deploy large numbers of officers to the area to enforce “quality of life” crimes, like sleeping on the sidewalk, Ramos had frequent contacts with officers. In early 2012, officers arrested him for having his tent on the sidewalk. They took him to the Central Station lock-up and booked him, ignoring his requests for medical attention, and placed him in a holding cell with just a concrete bench, a sink, and a toilet, for over twelve hours. He received no food while there. Eventually they moved him to the main 19 Human Rights Watch telephone interview with Nathan Ramos, Los Angeles, October 2016.

“NOT IN IT FOR JUSTICE” 24 LAPD jail where they put him in a cell that felt “like an ice box.”20 After two days in custody, police moved Ramos to the lock-up at the 77th Street Station, and released him a day later. The prosecutor never filed charges against him. Step Two: Police Decide to Arrest or Release A police officer with probable cause to believe someone has committed a crime, through observation or witness report, has authority to arrest.21 Police may arrest at the request of a private person,22 and may also use their discretion to issue a warning for certain violations. For misdemeanor violations, California Penal Code

section 853.6 requires police to issue a citation, with a signed promise to appear in court, and release the person without arrest. 23 This rule exempts certain stalking, domestic violence, and restraining order violations.24 However, the law also allows a series of general exceptions that give police officers nearly unlimited discretion to arrest instead of release.25 The exceptions include permitting arrest if: “prosecution of the offense … would be jeopardized by immediate release of the person arrested”; “there was a reasonable likelihood that the offense or offenses would continue or resume, or that the safety of persons or property would be imminently endangered by release”; or “there is reason to believe that the person would not appear at the time and place specified in the notice.” 26 While these provisions sound appropriate, they are vague, set no standard or oversight for the reasonableness of the officer’s determination, and are open to

interpretation. In practice, officers can always articulate some reason to believe the crime will resume or the suspect is dangerous or will not appear in court. In practice, Penal Code

section 853.6 20 The LAPD jail next to its main headquarter is referred to as “the Glass House.” Police hold arrestees there until they bail out or are taken to court. If still in custody after the court appearance, prisoners are sent to the county jail. 21 California Penal Code

sec. 836 authorizes police to arrest for any misdemeanor or felony committed in their presence. It also allows for arrest if the officer has probable cause to believe the person has committed a felony or a criminal act of fami ly violence, even if not occurring in the officer’s presence. If the offense is a misdemeanor, not occurring in the officer’s presence, the officer must have a civilian witness sign a “private person’s” arrest form. 22 California Penal Code

sec. 834. 23 California Penal Code

sec. 853.6(a)(1). 24 Ibid.,

sec. 853.6(a)(2). 25 California Penal Code

sec. 853.6(i). 26 Ibid.

25 H UMAN RIGHTS WATCH | APRIL 2017 barely constrains officers from arresting people on misdemeanor charges, instead of citing them with a signed promise to appear. If the officer decides to cite and release, the suspect signs a “promise to appear,” and receives a ticket with the court date, time and location, and the nature of the charges. The person receiving the ticket must appear in court to face the charges, or the judge will issue a “bench warrant,” authorizing subsequent arrest.

If an officer detains someone and determines they have an outstanding warrant, the officer retains the discretion to arrest, issue a separate citation to appear on the warrant, or simply give the person a warning. 27 People who are cited usually remain out of custody throughout the pretrial period, while those who are arrested and remain in custody have a much greater chance of having a bail set.28 The initial decision to make the arrest instead of cite and release can have profound consequences for those arrested and their families.

Michelle Roberts’ boyfriend was arrested for driving under the influence of alcohol.29 The officer took him to the station for a breathalyzer test, where he blew .081, just over the legal limit.30 Instead of giving him a citation and allowing him to call Michelle or a cab for a ride home, the officer chose to book him into the Santa Rosa City Jail. Given his low blood alcohol concentration, the officer could not justify refusing release based on intoxication.31 It does not appear that any of the other exemptions in Penal Code

section 853.6 reasonably should have applied. Still, he remained in jail. Michelle had to contact a bondsman and pay a $500 non-refundable premium to get her boyfriend released. He vowed to pay her back, but had financial troubles. The debt, Michelle said, was a “weight” on the relationship, which ended soon afterward.

In this case, the officer had a legal reason to cite and release, but chose not to, although other officers may have used their discretion differently. 27 Human Rights Watch telephone interview with Eric Aries, director, Los Angeles Community Action Network’s Homeless Citation Clinic, Los Angeles, January 30, 2016. 28 California Criminal Law: Practice and Procedure (Oakland: Continuing Education of the Bar, 2016), p. 100. 29 Human Rights Watch telephone interview with Michelle Roberts, Rohnert Park, April 30, 2016. 30 A 160-pound male would reach this amount after just over two beers.

State of California Department of Motor Vehicles, “California Driver Handbook – Alcohol and Drugs,” 2017, https://www.dmv.ca.gov/portal/dmv/detail/pubs/ hdbk/actions_drink (accessed March 28, 2017). 31 California Penal Code

sec. 853.6(i)(2).

“NOT IN IT FOR JUSTICE” 26 There is no presumption in favor of citation and release in felony offenses. Police must arrest all felony suspects, whether or not they are dangerous or likely to go to court. Step Three: Police Station Officers Decision to Set Bail When police arrest a suspect, they put him or her through the booking process at the station, including taking photographs and fingerprints, checking for outstanding warrants, and filling out various forms.

The arresting officer prepares a report describing the offense, including any evidence, witness statements and contact information, and statements by the accused. 32 The officer’s supervisor must review the report and determine whether it describes conduct amounting to a crime and what the crime is. If the supervisor determines there is no crime or that further investigation is needed to come to a conclusion, they release the arrestee. 33 If the supervisor determines there is a crime, they have discretion to release after booking or to detain until the first court appearance.

Each county has its own policies governing jail releases.34 For misdemeanors, Penal Code

section 853.6 sets a presumption in favor of release; however, as with the officer in the field, the in-station supervisor has wide discretion to keep the accused in custody. Penal Code

section 1269b(

a) authorizes the officer in charge of the jail to set an initial bail amount for an arrestee held in the jail immediately after booking. The officer sets bail according to the county’s bail schedule, which has a standardized amount based on the charge. 35 The arrestee may then post the bail by depositing money at the jail.36 Some counties have judicial officers on duty who will review each arrest and decide whether to order the arrestee released on a promise to appear or to set bail.

In Santa Clara 32 Crime reports sometimes leave out details, including witness information and evidence helpful to the accused. 33 During the booking process, police will attempt to locate any warrants, including out of county and out of state warrants. They will also check on whether there is a hold from the probation department, parole agent, or immigration department. If there is some other hold, they will not release the arrestee until they resolve that hold.

Police are generally capable of checking for warrants and other holds while in the field giving citations. 34 For example, in Santa Clara County, with some exceptions, those with a bail of $5,000 or less were released on a jail citation with a promise to appear. County of Santa Clara Bail and Release Work Group, Consensus Report on Optimal Pretrial Justice (draft), February 17, 2016, https://www.sccgov.org/sites/ceo/Documents/bail-release-work-group.pdf (accessed March 28, 2017), p. 18. In Kings County, all individuals with bail amounts below $10,000 are cited out either in the field or after booking.

Memorandum from David Robinson, Sheriff, Kings County, Pretrial Summit—Alt ernatives to Bail Options, November 2, 2015 (on file at Human Rights Watch). 35 California Penal Code

sec. 1269b(b). 36 California Penal Code

sec. 1269b(a).

27 H UMAN RIGHTS WATCH | APRIL 2017 County, for example, a magistrate automatically assesses the arrestee’s suitability for own recognizance release.37 In Los Angeles County, a government official told Human Rights Watch that a bench officer is assigned to review requests for own recognizance release pre-arraignment.38 Prisoners call a division within the probation department to request release, which provides a brief evaluation of the prisoner for the on-duty judge. Only one judge reviews applications at any given time.

According to the official, the duty judges are generally inexperienced and have little information on which to base decisions, are risk adverse, and do not hear from any advocates in this process.39 Step Four: Prosecutor’s Decision to File Criminal Charges After an arrest, the police officer submits their report to the prosecutor for filing consideration.

The prosecutor reviews the report and may reject the case outright, file a different or reduced charge, file the charge recommended by the police, or request further investigation.40 If the accused is in custody, the prosecutor has 48 hours to file the case from the time of arrest, excluding weekends and holidays.41 People arrested on Thursdays and Fridays usually spend the weekend in jail before seeing a judge. Often people will sit in custody, only to be released with no filing.

In May 2011, police arrested Jose Alvarez after he participated in a protest at Los Angeles City Hall and accused him of a felony. 42 They booked him at the station and set a bail he could not afford. He did not have money to pay for his release and sat in a police station cell from Friday afternoon until the following Tuesday morning, when they took him to court. Alvarez sat in a crowded holding cell all morning before the deputy district attorney notified his lawyer they were not filing charges.

It took them until late evening to process his release and let him go. 37 Erin Callahan, “Bail: How does it work?,” Criminal Law & Policy, March 22, 2016, https://crimlawandpolicy.wordpress.com/2016/03/22/bail-how-does-it-work (accessed March 28, 2017). 38 Human Rights Watch telephone interview with [name withheld], Los Angeles County official, Los Angeles, October 3, 2016. 39 Ibid. 40 In some jurisdictions, there are two different prosecutorial agencies: a county level district attorney, who prosecutes all felonies; and a city attorney, responsible for misdemeanors.

In other jurisdictions, the district attorney handles all cases. 41 California Penal Code

sec. 825. 42 California Penal Code

sec. 405 (“The taking by means of a riot of any person from the lawful custody of any police officer is lynching.”).

“NOT IN IT FOR JUSTICE” 28 Step Five: Setting Bail in Court If the prosecutor does file charges, the arrested person must appear in court. At the first court appearance, called the arraignment, the accused is assigned an appointed lawyer if they do not hire their own; receives the complaint, which details the charges; and receives the crime report and a copy of their rap sheet.43 The accused enters a plea, generally after consulting their lawyer and sometimes after evaluation of a settlement offer.44 After the accused enters a “not guilty” plea, the judge addresses pretrial detention.

If the accused seeks an own recognizance release, their attorney will make the request. If the prosecutor wants a bail set, they will ask the judge to do so. Often the arresting officer or prosecutor will fill out a bail request attached to the complaint submitted to the court. After the request for bail or own recognizance release, the judge conducts a hearing and decides. The judge may release the accused, with or without condit ions, or set a bail.

Release conditions that a judge may impose due to concern for public safety or to ensure appearance in court may include requirements to “stay away” from a person or location, attend Alcoholics Anonymous meetings, su bmit to house arrest, or electronic monitoring. 45 If an individual fails to adhere to th ese release conditions, a warrant will be issued for their arrest. Usually, if a person appears in court in response to a citation or a summons, the judge will continue the own recognizance release.

The judge may also set bail, usually in accordance with the set bail schedule. 43 The “rap” is a printout of the defendant’s history of arrests and convictions. 44 In misdemeanor cases, prosecutors almost always make settlement offers at the arraignment. In felony cases, defendants rarely plead guilty on the first court date. Prosecutors usually do not make settlement offers on the first appearance. The case is generally set for a preliminary hearing in two weeks, or for settlement conference before the preliminary hearing.

Prosecutors generally convey settlement offers at this second court appearance. 45 The defendant generally must pay for electronic monitoring, which can be extremely expensive and so often unavailable to poor people. The jail administrator may release people on electronic monitoring instead of bail, if certain conditions are met. California Penal Code

sec. 1203.018.

29 H UMAN RIGHTS WATCH | APRIL 2017 Step Six: Obtaining Bail If the judge sets bail, the prisoner must decide whether to pay for their release. For many, the decision is simple—the bail is too high. 46 For a homeless person living on General Relief in Los Angeles County,47 even a bail of a couple hundred dollars is out of reach.48 A person who can afford to pay full bail deposits it with the court clerk or law enforcement49 and immediately secures the prisoner’s release.

Assuming the accused returns to court and does not miss future appearances, the person who put up the money will get it all back once the case is resolved and the bond exonerated.50 However, few people pay the full amount.51 Those who cannot pay the full amount may use a bondsman, who charges up to a 10 percent fee and puts up a bond promising to pay the full bail amount if the defendant does not appear in court. The fee is not refundable, regardless of the case’s outcome. 52 46 Approximately 24 percent of California’s pretrial prisoners pay bail to get released.

Human Rights Watch analysis of US Department of Justice, Bureau of Justice Statistics, “State Court Processing Statistics: Felony Defendants in Large Urban Counties,” 2000-2009. SCPS data is occasionally referred to in this report. This data is intended to provide information about how felony defendants flow through the court system. It is a sample of all felony cases that occurred in May of each sampled year in each sampled county. The 75 largest counties in the country are sampled. The following data is not “representative” of all California felony cases in the given years.

The data has not been collected since 2009, yet this is the most recent data of its kind available. In analyses of the SCPS dataset, Human Rights Watch used the unweighted data from the years 2000 to 2009 to minimize bias toward large southern California counties because they are the only counties available in the most recent years and have higher weights.

Interpretation of the analyses using the SPCS data should be done with caution, as it is impossible to explain any causal associations between the patterns reported, and the data is not sufficient to make evaluative statements about effectiveness of different forms of pretrial release. In other words, the data only describes what occurred in California but does not explain why.

This analysis also does not take into account changes in California criminal justice policy and practice since the early 2000s. 47 A $221-per-month payment from the county for eligible people with no assets or income. 48 Neal Gabler, “The Secret Shame of Middle-Class Americans,” The Atlantic, May 2016. http://www.theatlantic.com/magazine/archive/2016/05/my-secret-shame/476415/ (accessed March 28, 2017). 49 California Criminal Law: Practice and Procedure, p. 118. 50 California Penal Code

sec. 1297. 51 According to one national study of large urban counties, only about 5 percent of all who bail out pay the full amount. Brian A. Reaves, “Felony Defendants in Large Urban Counties, 2009 - Statistical Tables,” US Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, December 2013, pp. 18-20. 52 “Bail, Bonds and Beyond,” presentation by Hutch Harutyunyan, Gotham Bail Bonds, ICDA Fall Seminar 2016, September 17, 2016.

“NOT IN IT FOR JUSTICE” 30 Katherine Gibson’s Case Katherine Gibson had some drinks with friends after work one Sunday afternoon, then had a minor traffic collision while driving home.53 Police arrested her, took her to the station, took a blood sample, and booked her into custody. Katherine had never been in trouble with the law. In her mid-twenties, she had recently moved to Los Angeles from a mid-Western town and set up a small business caring for and walking dogs. But she had begun to have health problems, including a wrist injury and a cancer diagnosis, and she took medications for anxiety.

At the station, handcuffed to her seat, Katherine heard officers making crass comments about another female arrestee. Eventually, they put her in a filthy holding cell, where she sat for several hours on a concrete bench. She was then moved to another cell with bunks and an exposed toilet, which flooded during the night. Terrified of the police and her fellow prisoners, in pain and missing essential medical treatment, Katherine had an anxiety attack, hyperventilating and yelling for help.

Usually, a first time driving under the influence charge results in release from custody after no more than a few hours to get sober and a citation to appear in court.54 Even a guilty plea for a first offense driving under the influence almost invariably involves probation55 and a fine, but no jail time. But the police would not release Katherine. They set a bail of $100,000.56 At the first opportunity, Katherine called her father for help. He called bondsmen, who offered to post the bail in return for a non-refundable 10 percent fee. Her father did not have the money, but was able to borrow it from a relative.

At 9 p.m. Monday night, police released her with an order to appear in court to answer to felony driving under the influence charges. 53 Human Rights Watch telephone interview with Katherine Gibson, Los Angeles, October 19, 2016; interview and email exchanges with [name withheld], Katherine’s attorney; review of Katherine’s court file. 54 California Criminal Law: Practice and Procedure, p. 1973 (“Generally, the arrestee is held until he or she has sobered up. A 4- to 12-hour hold is the norm.

The arrestee is then released with a citation and promise to appear (i.e., on O.R.).”). 55 Conditions of probation on a first time driving under the influence (California Penal Code

sec. 23152) in Los Angeles County include a fine, a suspended license, and DUI classes. An aggravated case, for example one with an accident, might require some additional community service work. 56 This bail amount was according the Los Angeles County bail

schedule for a felony driving under the influence charge. California Vehicle Code

sec. 23153.

31 H UMAN RIGHTS WATCH | APRIL 2017 Katherine had no prior convictions,57 and there was no evidence anyone was injured badly enough to merit the more serious charge.58 But the arresting officer had characterized the violation as a felony in his report, so station officers assigned the felony bail level. Had the officer not called it a felony, Katherine would likely have been cited out on her own recognizance, or would have had to pay a $2,000 fee to the bondsman, not $10,000.59 “I know I messed up. I know there should be consequences,” Katherine said. But she feels she was set up to fail.

The experience has left her discouraged: “I can completely understand why people can’t get out of the system.”60 On her court date, Katherine learned the district attorney did not file the felony and that she faced a misdemeanor charge. Despite the reduced charge, Katherine could not get her money back from the bondsman. She wanted to fight the case, but did not have enough money to pay her lawyer to go to trial. So she pled guilty for probation, a fine, community service, and classes. She now cannot afford car insurance, limiting her ability to work, and struggles to pay rent.

How Judges Set Bail Fixing bail is a serious exercise of judicial discretion that is often done in haste … without the full in quiry and consideration which the matter deserves. — Stack v. Boyle, 342 U.S. 1, 11 (1951) (J. Jackson, concurring opinion) Bail Hearings Hearings to decide pretrial release status and to set bail amounts in California are generally extremely fast and often involve minimal argument. Judges have imprecise guidelines to direct their discretion, and almost no meaningful oversight.

A defendant is entitled to review the bail order within five days,61 but the practical likelihood of changing 57 California Vehicle Code secs. 23153, 23554. 58 E-mail to Human Rights Watch from [name withheld], Katherine’s attorney, December 2, 2016. The lawyer Katherine eventually hired saw no basis for the felony charge. He reviewed the reports and said they documented “no apparent significant injuries.” 59 “2017 Bail

Schedule for Infractions and Misdemeanors,” Superior Court of California, County of Los Angeles, 2017, https://www.lacourt.org/division/criminal/pdf/misd.pdf (accessed March 28, 2017). 60 Human Rights Watch telephone interview with Katherine Gibson, Los Angeles, October 19, 2016; interview and email exchanges with [name withheld], Katherine’s attorney; review of Katherine’s court file. 61 California Penal Code

sec. 1270.2.

“NOT IN IT FOR JUSTICE” 32 the original judge’s decision is very small. The original judge who set bail at arraignment sometimes conducts the review.

In setting bail or granting release, the judge engages in an assessment of risk—primarily related to community safety. 62 They also assess the probability of the defendant not appearing in court.63 In doing so, the judge considers the seriousness of the charged offense, the defendant’s prior criminal history, and prior missed court dates.64 The judge may consider mitigating factors about the defendant, including work and schooling, ties to the community, and other factors that counsel may present to the court.

The judge evaluates the seriousness of the offense based on reading the police report; there is no evidentiary hearing with live testimony about what really happened. Counsel may, but often does not, have the time or resources to present additional argument, based on statements, declarations, letters, documents, and representations.

A public defender who handles a high volume of arraignments and/or bail hearings in one Southern California court described having a short time to talk to the prisoner, review the facts of the case, get some mitigating information about employment and community ties, make calls to verify the information, then argue for release or low bail in court. 65 He said that if he had a paralegal or investigator or more attorney assistance at this stage of the case, he would have more success securing release for his clients. Common court practice is not to put great effort into bail hearings.

In Alameda County courts, there is often no attorney appointed for the initial bail hearing. 66 One Los Angeles County Superior Court judge has criticized public defenders for not fighting to get their clients out of jail at arraignment.67 According to retired San Diego County Judge Lisa Foster: 62 California Penal Code

sec. 1275, California Constitution art. 1,

sec. 12. 63 Ibid. 64 Ibid. 65 Human Rights Watch interview with [name withheld], deputy public defender, Los Angeles, November 2016. 66 Human Rights Watch interview with Brian Bloom and Rodney Brooks, Alameda County deputy public defenders, Oakland, March 2016. 67 Human Rights Watch interview with Judge [name withheld], Los Angeles County Superior Court, Los Angeles, March 29, 2016.

33 H UMAN RIGHTS WATCH | APRIL 2017 To be perfectly honest, I didn’t think much about bail, and to the best of my recollection, neither did anyone else—not my colleagues on the bench, not the prosecutors, not the public defenders.68 Another Los Angeles County judge observed lawyers do not strenuously litigate bail, and that high bail is a part of court culture.69 One reason defense lawyers cite for not fighting bail hearings more strenuously, in addition to lacking time and resources to make effective presentations, is that judges tend to avoid making individualized decisions by automatically applying the bail

schedule amount based on the charge. 70 California Bail Schedules Mean High Bail The bail

schedule is a list of crimes or categories of crimes, each with an amount of bail fixed. 72 The schedules add amounts for alleged prior offenses and enhancements.73 Each California county sets its own bail

schedule according to its own procedures. 74 Usually, the judges meet annually to prepare, adapt, and revise a uniform

schedule for all crimes.75 The law gives no guidance beyond commanding them to consider the seriousness of the charge.76 One judge from Contra Costa County acknowledged that judges did not 68 Lisa Foster, Director of the Office of Access to Justice of the Department of Justice and former San Diego Superior Court judge, Remarks at ABA’s 11th Annual Summit on Public Defense, February 6, 2016, https://www.justice.gov/opa/speech/ director-lisa-foster-office-access-justice-delivers-remarks-aba-s-11th-annual-summit (accessed March 28, 2017). 69 Human Rights Watch interview with Judge [name withheld], Los Angeles County Superior Court, March 30, 2016. 70 Human Rights Watch interview of Baker Ostrin, Los Angeles County Deputy public defender, March 2016; Human Rights Watch interview with Jeff Adachi, public defender, San Francisco County, San Francisco, October 6, 2015. 71 Sonya M.

Tafoya, “Pretrial Detention and Jail Capacity in California,” Public Policy Institute of California, July 2015, http://www.ppic.org/content/pubs/report/R_715STR.pdf (accessed March 28, 2017). 72 For example, Riverside County schedules a bail of $10,000 for all crimes with a maximum sentence of three years and $25,000 for all crimes with a maximum sentence of four years. Neighboring San Bernardino County schedules by the particular crime. Penal Code

section 69 (resisting an officer) carries a three-year maximum sentence and is scheduled for $50,000 bail; Penal Code

section 118 (perjury) carries a four-year maximum sentence and is also scheduled for $50,000 bail. 73 For example, Riverside County schedules an additional $20,000 for each state prison prior alleged pursuant to Penal Code

section 667.5 or $75,000 for use of a firearm pursuant to Penal Code

section 12022.5. 74 California Penal Code

sec. 1269b(d). 75 California Penal Code

sec. 1269b(c). Judges do not create schedules for Vehicle Code infractions. Instead, the Judicial Council does. 76 California Penal Code

sec. 1269b(e); Human Rights Watch interviews with Sonya Tafoya, Public Policy Institute of California, August 18, 2015, October 5, 2015, and March 14, 2016. The median bail amount in California ($50,000) is over five times that of the rest of the country.71

“NOT IN IT FOR JUSTICE” 34 base their bail

schedule decisions on actual data.77 The public defender from Contra Costa County, who sends a representative to the judges’ meeting to set the schedules, said bail amounts had “no correlation to public safety or the risk of failure to return to court. They appear to be pulled out of thin air.”78 A Central California judge who was on his county’s bail

schedule committee described receiving a circulated copy of the schedule, reviewing it for a few minutes, then voting to approve it.79 Bail schedules vary drastically from county to county, without apparent correlation to crime rates, income levels, or even regional preferences.80 Though the bail levels may differ by county, overall, they are extremely high.81 The median bail amount in California ($50,000) is over five times that of the rest of the country.82 Overall bail levels increased in California by an average of 22 percent from 2003-2013, though some individual counties have reduced their bail levels.83 The stated purpose of the bail

schedule is to provide a bail amount for law enforcement officers to set after booking an arrestee and determining not to release that person with a citation.84 The judge is supposed to make an individualized decision about the amount once the defendant comes to court, and only needs to justify departing from the

schedule if the offense is a “serious” or “violent” felony or for certain other specified offenses.85 However, despite the high levels of bail proscribed by the schedules and the lack of careful planning in creating those schedules, judges across the state tend to use them reflexively instead of making an individualized decision.86 77 Human Rights Watch interview with Judge [name withheld], Contra Costa Superior Court, Martinez, March 2016. 78 Human Rights Watch interview with Robin Lipetzky, public defender, Contra Costa County, Martinez, March 7, 2016. 79 Human Rights Watch interview with Judge [name withheld], [name withheld] County Superior Court, March 2016. 80 Sonya M.

Tafoya, “Assessing the Impact of Bail on California’s Jail Population,” Public Policy Institute of California, June 2013, http://www.ppic.org/content/pubs/report/R_613STR.pdf (accessed March 28, 2017), pp. 15-16. 81 Sarah Lawrence, “Managing Jail Populations to Enhance Public Safety: Assessing and Managing Risk in the Post- Realignment Era,” Stanford Criminal Justice Center, June 10, 2013, http://law.stanford.edu/wp- content/uploads/sites/default/files/child-page/440504/doc/slspublic/Paper%20on%20jail%20mgmt% 20July%202013.pdf (accessed March 28, 2017), p. 11. 82 Sonya M.

Tafoya, “Pretrial Detention and Jail Capacity in California,” Public Policy Institute of California, July 2015, http://www.ppic.org/content/pubs/report/R_715STR.pdf (accessed March 28, 2017). 83 Sonya M. Tafoya, “Assessing the Impact of Bail on California’s Jail Population,” Public Policy Institute of California, p. 2. 84 California Penal Code secs. 1269b(a), (b). 85 California Penal Code

section 1270.1. 86 Human Rights Watch interviews with Judge [name withheld], San Francisco Superior Court, San Francisco, March 15, 2016 (who said they normally use the bail schedule); Molly O’Neal, public defender, Santa Clara County, San Jose, March 17, 2016;

35 H UMAN RIGHTS WATCH | APRIL 2017 Contra Costa County Chief Public Defender Robin Lipetzky told the Little Hoover Commission Regarding Bail Reform and Pretrial Detention: Unfortunately, what I have seen in Contra Costa is that judges are loath to deviate from the bail

schedule regardless of circumstances of the individual charged. In essence, the preset bail

schedule has become a presumptive bail for each and every defendant. Blind adherence to a bail

schedule has become the default; it is expedient, it requires no independent thought, and it provides easy cover for judges…. 87 Judge Eskin of Santa Barbara County echoed Lipetzky’s assessment, saying that judges set bail on

schedule because it is easy and expedient, as they only have a few minutes per case, and using the

schedule facilitates getting through the calendar. 88 The American Bar Association condemns the use of bail schedules, calling them “arbitrary and inflexible” and warns they “inevitably lead to detention of people who pose little danger of re-offending or not appearing in court, while facilitating the release of wealthy dangerous people.” 89 Many judges prefer the bright line rules that the bail schedules provide. 90 Some are concerned they will be blamed if they release someone from custody with a low bail, and that person commits a future crime;91 many prefer defendants to be in custody. Using the bail

schedule allows judges a quick method of setting bail levels high enough to keep most people in custody without appearing to be especially harsh.

Andres del Alcazar, deputy public defender, Santa Clara County, San Jose, March 17, 2016; Baker Ostrin, deputy public defender, Los Angeles County, Los Angeles, March 2016; Judge [name withheld], Alameda County Superior Court, Oakland, March 16, 2016 (who said that the culture here is to use the schedule). 87 Robin Lipetzky, Chief Public Defender, Contra Costa County, “Written Testimony Presented to the Little Hoover Commission Regarding Bail Reform and Pretrial Detention,” March 21, 2013, http://www.lhc.ca.gov/studies/activestudies/ bail%20and%20sentencing%20reform/LipetzkyMar13.pdf (accessed March 28, 2017), p. 3. 88 Human Rights Watch interview with Judge Eskin, formerly of Santa Barbara Superior Court, Montecito, March 22, 2016. 89 ABA Pretrial Standards, Standard 10-53(

e) and commentary. The standard itself says: “Financial Conditions should be the result of an individualized decision taking into account the special circumstances of each defendant, the defendant’s ability to meet the financial conditions and the defendant’s flight risk, and should never be set by reference to a predetermined

schedule of amounts fixed according to the nature of the charge.” 90Human Rights Watch interview with Judge [name withheld], Santa Barbara Superior Court, Santa Barbara, March 22, 2016. Some judges that spoke with Human Rights Watch indicated they would depart from bail schedules regularly. However, the majority of system professionals agreed that most judges stuck closely to them. 91 Human Rights Watch interview with Judge [name withheld], Contra Costa Superior Court, Martinez, March 2016.

“NOT IN IT FOR JUSTICE” 36 Judges’ deference to bail schedules concentrates power in the hands of prosecutors, who can dictate the amount of bail by what charges they choose to file and how many counts and enhancements they add. One San Francisco judge related the story of a defendant arrested for statutory rape, 92 an offense punishable as a misdemeanor or a felony. The district attorney filed it as a misdemeanor; the judge set bail pursuant to the misdemeanor bail schedule. The defendant’s boss paid for his bond. After he bailed out, the prosecutor re-filed the case as a felony and requested an increase to the felony bail

schedule level. This judge noted that the conduct was no different, nor was the danger to the public and risk of failure to appear, and so refused to increase bail.93 Other judges may have acquiesced. Not surprisingly, prosecutors tend to strongly support the use of bail schedules.

Alameda County District Attorney Nancy O’Malley told Human Rights Watch that she saw them as a good starting point, though noted prosecutors can ask for increases. 94 Los Angeles County District Attorney Jackie Lacey said that she liked the “consistency” that bail schedules provide.95 Deputy District Attorney Larry Droeger, representing the Los Angeles County District Attorney’s office at a meeting on Los Angeles County bail reform, expressed his office’s support for using schedules, as they tie the bail amount to the seriousness of the crime and, as a practical risk assessment tool, they believe the schedules work.96 The director of pretrial services for one Central California county disagreed with Droeger’s premise, warning it is a mistake to equate risk with the seriousness of the charge. 97 92 California Penal Code

sec. 261.5(c). Statutory rape under this

section is sex with a minor, over the age of 16, by someone more than three years older. 93 Human Rights Watch interview with Judge [name withheld], San Francisco Superior Court, San Francisco, March 15, 2016. 94 Human Rights Watch interview with Nancy O’Malley, district attorney, Alameda County, Oakland, October 6, 2015. 95 Human Rights Watch interview with Jackie Lacey, district attorney, Los Angeles County, Los Angeles, March 29, 2016. 96 Los Angeles County criminal justice stakeholders meeting convened by Supervisor Sheila Kuehl, Los Angeles, December 15, 2016. 97 Human Rights Watch interview with Garry Herceg, deputy county executive and former director of Pretrial Services for Santa Clara County, San Jose, April 9, 2016; email from Garry Herceg to Human Rights Watch, February 1, 2017 (“The Deputy DA in LA County is essentially saying that bail schedules work because they detain people with high bail amounts who have serious charges.

This is ironic because money bail schedules, and bail in general, are not intended to detain people, and it certainly is not individualized as required in Stack v. Boyle or Salerno cases. Even if someone has a serious charge and high bail amount, they can still get out by posting a small amount to bail bondsman and be freed, how is that good public safety?”).

37 H UMAN RIGHTS WATCH | APRIL 2017 Daria Morrison’s case provides a good example of the charge not correlating to the actual risk level.98 Prosecutors charged her with three counts of robbery, and the judge set bail at the scheduled amount of $150,000. The judge did not account for her lack of any criminal record, her role as caretaker for her mother, or that she was working two jobs and going to school. The court eventually heard the evidence during the preliminary hearing, and learned that she had been a passenger in the car and not involved in the robbery itself.

She ultimately pled to a much-reduced charge with a community service punishment, but not until her family went into debt paying her bail. One analyst has determined that lowering bail schedules by 10 percent would reduce the percentage of pretrial detainees by 4 percent. 99 The unaffordable bail amounts in the current schedules keep large percentages of people in what essentially amounts to preventive detention. Preventive Detention Preventive detention means holding a defendant in custody pretrial without any opportunity for release, and prevents the accused from absconding or being a danger to the community.

The California Constitution makes preventive detention extremely rare.

Article 1,

Section 12 guarantees all defendants the right to pretrial release “on bail by sufficient sureties,” unless they are accused of a capital crime, a violent crime, or felony sexual assault when there is “clear and convincing” evidence that their release will entail a substantial likelihood of serious injury to another person, or any felony when there is “clear and convincing” evidence the defendant threatened to cause serious injury to another and is likely to carry out that threat.

Before ordering “no bail” or preventive detention, the judge must find “the facts are evident or the presumption great” that the accused is guilty. 100 98 Human Rights Watch telephone interview with Daria Morrison, Los Angeles, November 12, 2016; email and telephone communications with Daria’s attorney; review of court file and preliminary hearing transcript for Daria Morrison and Sarah Jackson’s case. 99 Sonya M. Tafoya, “Assessing the Impact of Bail on California’s Jail Population,” Public Policy Institute of California, June 2013, p. 11. 100 California Constitution art. 1,

sec. 12. Judges may also order “no bail” holds on defendants accused of probation violations. Defendants in custody may also have holds placed on them through the custodial officers that prevent their release on bail because of parole violations, out of jurisdiction warrants, and immigration holds. Our analysis does not address these extrinsic holds.

“NOT IN IT FOR JUSTICE” 38 However, judges can and often do avoid the constitutional requirements of formal preventive detention by simply setting a bail amount too high for the accused to pay. Chief Justice of the California Supreme Court Tani Cantil-Sakauye told Human Rights Watch that imposing bail results in preventive detention.101 Several other judges also acknowledged this. 102 A former Santa Barbara County judge said, “We set bail at an amount to keep the defendant in jail.”103 A pretrial services official for a Central California county told Human Rights Watch that a judge from Fresno told him that he used bail as preventive detention.104 When a judge follows the

schedule and sets a $5,000 bail for a homeless person, he knows he may as well have ordered a “no bail” detention. At least one California appellate decision has said: “… [T]he Court may neither deny bail nor set it in a sum that is the functional equivalent of no bail.” 105 This statement may not have the practical force of law.106 Though some judges may account for a defendant’s ability to pay,107 most refuse to consider it.108 Some judges have an understanding of a defendant’s ability to pay, and deliberately set bail above that.

While the California and Federal constitutions forbid “excessive” bail, neither require affordable bail.109 Of course, using bail as a replacement for preventive detention does not necessarily advance the cause of public safety, as some released people may commit new crimes regardless of socioeconomic status. 110 101 Human Rights Watch telephone interview with Chief Justice Tani Cantil-Sakauye, California Supreme Court, Sacramento, March 18, 2016. 102 Human Rights Watch interviews with Judge [name withheld], Los Angeles County Superior Court, Los Angeles, March 29, 2016 (who said judges are risk averse in their bail setting; they don’t want to take chances); Judge [name withheld], Santa Barbara County Superior Court, Santa Barbara, March 2016 (who said judges set bail at an amount to keep the defendant in jail); Judge [name withheld], Alameda County Superior Court, Oakland, March 14, 2016 (who said the purpose of bail is jail). 103 Human Rights Watch interview with Judge [name withheld], Santa Barbara County Superior Court, Santa Barbara, March 2016. 104 Human Rights Watch interview with [name withheld], Pretrial Services for [name withheld] County, April 2016. 105 In re Christie, 92 Cal.

App. 4th 1105, 1109-10 (2001). 106 This line is dicta and not the holding of the case, and does not cite to any other holding, though it would seem to describe a basic, common sense principle of law. The case held that the trial court must generate a specific factual record to explain its deviation from the bail

schedule in order to facilitate appellate review. In this case, the judge set bail at 10 times the scheduled amount and needed to explain his reasoning. 107 Human Rights Watch interview with Judge [name withheld] Los Angeles County Superior Court, Pasadena, March 30, 2016. 108 Human Rights Watch interview with Chesa Boudin, deputy public defender, San Francisco County, San Francisco, March 8, 2016. 109 In re Burnette (1939) 35 Cal. App. 2d 358, 360. 110 Human Rights Watch interview with George Gascon, district attorney, San Francisco County, San Francisco, March 10, 2016.

39 H UMAN RIGHTS WATCH | APRIL 2017 Bail bond industry representatives describe money bail as “a liberty-promoting institution” and cite its ability to allow defendants freedom without major costs to taxpayers.111 But it can involve significant costs and financial harm to defendants and their families. Fees paid to bail bondsmen are not refunded regardless of the outcome of the case. After bail is set at the police station or in court, defendants or their supporters may go to bondsmen who then decide whether to accept the bond.

Bondsmen look at a variety of risk factors about the accused to decide if they should insure the appearance.112 One crucial factor they look at is how much money the defendant can pay toward the fee. An employee of Bail Hotline in Sacramento said charging fees is done “case by case”: Technically, we have a guideline but we just sort of work everything out based on who we are dealing with. Usually, we ask for 10 percent of the bail amount up front, but we have discretion in setting that up.

Our goal is to try to get as much payment up front as possible.113 Competition among different bond agencies means they will often make deals, including reducing their fee to 8 percent, sometimes lower.114 They frequently offer payment plans, sometimes agreeing to down payments as low as 1 percent, along with monthly payments.

Matthew Dixon told Human Rights Watch he spent a week in the Alameda County Jail with a $180,000 bail set before a friend could find a deal from a bondsman.115 His friend paid $1,500 up front on a $15,000 premium, and Matthew now pays $250 each month to the bondsman, who constantly pressures him to make payments. Paul Fowler described how his son was arrested and held in Contra Costa County Jail with a $250,000 bail before his court appearance.116 The bondsman pressured him to pay immediately in case the prosecutor 111 Jeffrey J.

Clayton, “Defendants and Governments Cannot Afford the No-Money Bail Movement,” American Bail Coalition, October 6, 2016, http://www.americanbailcoalition.org/in-the-news/defendants-governments-cannot-afford-no-money-bail- movement/ (accessed March 28, 2017). 112 Albert W.

Ramirez, Counsel, Golden State Bail Agents Association, “Written Testimony for the Little Hoover Commission,” November 27, 2012, http://www.lhc.ca.gov/studies/activestudies/bail%20and%20sentencing%20reform/ Ramirez%20Testimony.pdf (accessed March 28, 2017), pp. 6-7. 113 Human Rights Watch interview of [name withheld], Bail Hotline, Oakland, April 25, 2016. 114 “Bail, Bonds and Beyond,” presentation by Hutch Harutyunyan, Gotham Bail Bonds, ICDA Fall Seminar 2016, September 17, 2016. 115 Human Rights Watch telephone interview with Matthew Dixon, Oakland, March 17, 2016. 116 Human Rights Watch telephone interview with Paul Fowler, Richmond, April 15, 2016.

“NOT IN IT FOR JUSTICE” 40 added more charges. Fowler waited. At the arraignment, the judge reduced the bail to $30,000. He paid $1,500 down and set up $300 per month payments on a $3,000 premium.

The American Bar Association, recommending abolition of for-profit bail bonding, decried this discretion in the hands of private, minimally regulated, profit-motivated actors: It is the bondsmen who decide which defendants will be acceptable risks—based to a large extent on the defendant’s ability to pay the required fee and post the necessary collateral.… [D]ecisions of bondsmen … are made in secret, without any record of the reasons for these decisions.117 Several people whom Human Rights Watch interviewed complained about bail bondsmen taking advantage of their lack of knowledge of the system to get them to pay, or otherwise manipulating them.118 One person described how a bondsman convinced her mother, diagnosed with a mental illness, to pay a non-refundable fee, when the daughter could have deposited the full bail amount.119 Hutch Harutyunyan, of Gotham Bail Bonds, said that, by contract, bondsmen have earned their fees when police release the prisoner.120 If the case does not get filed, the person paying the fee still owes the money under any agreed upon payment plan.

If the prosecutor decides to file the case at some future date, after the court has exonerated the original bond,121 and the judge sets a new bail, the defendant must pay a completely new fee to obtain bail. Kevin Ocampo in Alameda County paid a 6 percent fee on a $250,000 bail to get his cousin out of jail.122 When he went to court, the judge raised the bail to $325,000. The bondsman would not apply the amount already paid to the new bond.

Instead, Kevin had to pay a new premium of 8 percent on the new amount. 117 American Bar Association, Standards for Criminal Justice: Pretrial Release (Third Edition) (Washington, DC: American Bar Association, 2007), p. 45. 118 Human Rights Watch telephone interviews with Jessie Green, Oakland, March 26, 2016; Stanley Carter, East Oakland, May 4, 2016; and Terrence Rios, San Francisco, April 15, 2016. 119 Human Rights Watch telephone interview Molly Harris, Monterrey, May 1, 2016. 120 “Bail, Bonds and Beyond,” presentation by Hutch Harutyunyan, Gotham Bail Bonds, ICDA Fall Seminar 2016, September 17, 2016. 121 California Penal Code

sec. 1297. When the case is over, either because it is resolved or because it is not even filed, the judge exonerates the bond and orders it returned to the person who paid, usually the bail bondsman. 122 Human Rights Watch telephone interview with Kevin Ocampo, San Lorenzo, March 21, 2016.

41 H UMAN RIGHTS WATCH | APRIL 2017 Henry Anderson said he paid a fee to a bondsman.123 He went to court, and his case was dismissed. The district attorney later re-filed the charges, the court set a new bail, and Anderson had to pay a whole new fee to secure his release. The US and the Philippines are the only countries in the world with private, for-profit bail bond industries.124 Many other countries and some states use financial bail, but require payment directly to a government agency. In Illinois, defendants pay 10 percent of the bail directly to the court clerk.

If they make their court dates, the clerk returns their money minus a maximum $100 processing fee.125 The disadvantage of this type of system for people seeking pretrial release is that they must pay the full 10 percent amount up front. Bondsmen in California allow many people to buy freedom with a low down- payment and installments when they might otherwise not be able to pay.

Daria Morrison is still making payments on the bond her father got for her after she spent three weeks in jail on a robbery charge in Los Angeles County, though she is grateful to the bondsman for helping her out of jail.126 123 Human Rights Watch interview with Henry Anderson, March 15, 2016. 124 Timothy Schnacke, “Money as a Criminal Justice Stakeholder: The Judge’s Decision to Release or Detain a Defendant Pretrial,” National Institute of Corrections, September 2014, https://www.pretrial.org/download/research/Money% 20as%20a%20Criminal%20Justice%20Stakeholder.pdf (accessed March 28, 2017), p. 33. 125 Human Rights Watch telephone interview with Sharone Mitchell, Illinois Justice Project, Chicago, October 27, 2016. 126 Human Rights Watch telephone interview with Daria Morrison, Los Angeles, November 12, 2012.

“NOT IN IT FOR JUSTICE” 42 II. Bail Leads to Jailing People Who Are Not Guilty One of the most harmful aspects of California’s bail system is that it results in the pretrial incarceration of hundreds of thousands of people without proof they committed any crime. From 2011-2015, police in California made 1,451,441 felony arrests of individuals, all but a small fraction of whom had bail set for some period of time. Of those, 459,847 were arrested and held in jail, but never found guilty of any crime. 127 Prosecutors did not even file charges against 273,899 of those people.

In other words, over a quarter-of-a million Californians sat in jail for up to five days, accused of felonies for which evidence was so lacking prosecutors could not bring a case. The others had cases filed, but lacked sufficient proof of guilt, resulting in eventual dismissal or acquittal after weeks and months in jail. Many of these people were victims of baseless arrests; others, mistakes of judgment, or misunderstandings of the law.

These people spent days, weeks, and months in jail while waiting for trial, serving out sentences for crimes they did not commit, losing jobs, missing their families, having to drop out of school, suffering the misery of being locked up. By setting bail that people cannot afford, the pretrial detention system punishes people without proving their guilt. 127 Crime in California, 2015, California Department of Justice, California Justice Information Services Division Bureau of Criminal Information and Analysis, Criminal Justice Statistics Center, p. 49.

During these years, 68.3 percent of felony arrests resulted in some conviction. 3.3 percent of those arrests were rejected at the station by the supervisor; 15.6 percent were rejected for filing by the prosecutor; and 12.8 percent were either dismissals or acquittals in court. These statistics do not include misdemeanor arrests, which accounted for 72.1 percent of all arrests in 2015.

Adding misdemeanor arrests would show the number of people detained pretrial and ultimately never convicted of any crime is significantly greater than the felony arrests alone show. …over a quarter-of-a million Californians sat in jail for up to five days, accused of felonies for which evidence was so lacking prosecutors could not bring a case. By setting bail that people cannot afford, the pretrial detention system punishes people without proving their guilt.

43 H UMAN RIGHTS WATCH | APRIL 2017 The cost to taxpayers of this senseless pretrial punishment is staggering. Each day a person is held in custody costs an average of $113.87.128 Human Rights Watch analyzed all bookings into jails in Alameda, Fresno, Orange, Sacramento, San Francisco, and San Bernardino Counties for 2014 and 2015.129 The total cost of jailing people, never found guilty of any crime, just in these counties, was about $37.5 million over the two years. Sources: Human Rights Watch analysis of county jail data.

The proportion of state-wide unsentenced population uses the average monthly proportion over the two years and is from Human Rights Watch analysis of California Board of State and Community Corrections Data.

The per day cost estimate is from the Public Policy Institute of California. 128 Brandon Martin and Ryken Grattet, “Alternatives to Incarceration in California,” Public Policy Institute of California, April 2015, http://www.ppic.org/content/pubs/report/R_415BMR.pdf (accessed March 28 2017). 129 Analysis includes every jail booking that was released as a “dismissal” or “no charges filed” or an equivalent description.

The actual number of days each of these people were held is multiplied against the Public Policy Institute of California per day cost estimate of $113.87 per day to estimate the total cost of these bookings per county.

Table 3: Cost estimates for bookings held until dismissal or released with cases not filed, 2014 - 2015 County Number of bookings Median days held Mean days held Total person- days held (actual) Total 2014-2015 cost at $113.87 per day Proportion of average monthly CA unsentenced population Alameda 15,262 3 9 130,173 $14,822,799.51 4.9% Fresno 6,505 2 5 33,930 $3,863,609.10 4.0% Orange 3,292 2 2 7,952 $905,494.24 6.8% Sacramento 6,029 3 8 49,083 $5,589,081.21 4.5% San Bernardino 1,723 10 48 79,524 $9,055,397.88 8.6% San Francisco 5,584 3 5 28,671 $3,264,766.77 2.1% Total 38,395 329,333 $37,501,148.71 30.9%

“NOT IN IT FOR JUSTICE” 44 Bail Keeps People in Jail After Arrest without Basis [C]ontempt of cop… [means] if you piss me off as a police officer, there’s a price to pay … I could arrest you on a Friday, knowing that you don’t have the financial wherewithal to get out of jail, knowing that I don’t have the P.C. [probable cause] to arrest. It’s all good. You’re gonna spend the weekend in jail. You’re gonna go to the D.A. [District Attorney] on Monday, it’ll be a reject, and you’ll get out. And I’ll write a report that’s gonna justify it with some reasonable suspicion or probable cause.

But guess what: I just took 72 hours out of your life that you can never get back.130 –Sgt. Cheryl Dorsey, former LAPD, October 7, 2016 Jason Miller is in his mid-forties and lives on the streets in the Skid Row

section of downtown Los Angeles.131 Because of his homeless status, and because the Los Angeles Police Department saturates the neighborhood with officers, he has had many encounters with police in recent years. He has been off probation since 2013, but counts 10-15 arrests since then. As he has no money to pay bail, his arrests mean he goes to jail. In the summer of 2016, Jason told Human Rights Watch he and an officer had an argument about his dog. Jason demanded to speak to a sergeant, but instead, a lieutenant came and ordered the officers to arrest him. The reason they gave: he possessed narcotics.132 They took him to the police station, booked him, and held him under the felony bail

schedule amount of $10,000. Jason told Human Rights Watch he had not possessed drugs, but he had no money to get out. He stayed in the station jail, unable to sleep due to the noise, with no books, television, or anyone to talk to. On the third day, he went to court where he was packed into a cell with close to 40 other prisoners, many of whom were starting fights. Finally, at about 4:30 p.m., deputies at the lock-up told him the case was a DA reject—no filing. It took him two more days and $122 to get his dog out of the pound.

All his property, including tent, clothing, toiletries, and medications were gone. *** 130 UC Irvine, Institute for Policing in Society, “Race and Policing: Defining the Problem and Developing Solutions,” video livestream, October 7, 2016, http://livestream.com/accounts/867536/events/6379909 (accessed March 28, 2017), comments of Sgt. Cheryl Dorsey, LAPD, ret. 131 Human Rights Watch interview with Jason Miller, Los Angeles, November 16, 2016. 132 California Health and Safety Code

sec. 11350(a).

45 H UMAN RIGHTS WATCH | APRIL 2017 Jailing People Who Are Not Guilty David Gonzalez, 19, was looking forward to going to college in the fall.133 He had just graduated from high school, lined up his classes for August at Santa Ana College, and was looking for a job when police arrested him and locked him up in the Orange County Jail. David told Human Rights Watch that the next day, July 7, 2016, police brought him to court for his arraignment. He learned he was accused of raping an unconscious person, a crime punishable by up to eight years in prison. The judge set bail at $100,000.

David had had sex with the girl who had been raped, but had been away in school at the time of the alleged rape. Still, they took him back to jail where he would have to stay unless his family could get the money together. David’s father worked at a restaurant, making minimum wage. His siblings had no extra money. The family home was about to be foreclosed on, so they could not borrow money against the property. In jail, David tried to stay out of trouble. A couple of the older guys, seeing he was just a kid, looked out for him a bit and advised him to lay low. Still, he had a cellmate who gave him problems.

He had to fight to protect himself a couple of times. Otherwise, there was nothing to do but sit and wait, and hope the truth would emerge. David’s sister Nina would miss work once a week to drive from San Bernardino to visit him and try to keep his spirits up. Still, he would break down in tears when she saw him. Nina was able to get his school records to help establish that he was in school that day. The case was based on DNA evidence, but the prosecutor had not spoken to the victim about David. Eventually, David’s lawyer located the victim.

She confirmed that she had been with David the weekend before the rape, but he had nothing to do with the crime. On September 30, 2016, the prosecutor spoke to the victim and agreed to dismiss the case. David had spent nearly three months in jail for a crime he did not commit, because bail was so high his family could not afford to pay. He missed his first semester of college. 133 Human Rights Watch telephone interview with David Gonzalez and Nina Gonzalez, Orange County, November 2, 2016; review of information from David’s court file.

“NOT IN IT FOR JUSTICE” 46 Bail Keeps People in Jail Who Never Have Charges Filed Human Rights Watch analyzed Alameda County 2014-2015 jail bookings and release data to determine how many people were released, under what circumstances, and how long they spent in custody. Table 4: Alameda County bookings by time held and release type, 2014-2015 Release type Number of bookings Mean days Median days Bail 12,166 2.9 1 No charges filed 11,909 3.1 2 Sentenced release (including time served/probation) 6,973 33.9 13 Own recognizance 3,848 14.9 4 Dismissed 3,353 27.8 12 Source: Human Rights Watch analysis of Alameda County jail data.

47 H UMAN RIGHTS WATCH | APRIL 2017 During this time, 11,909 people were held for an average of 3.1 days with no complaint filed. 134 This figure represents close to 12,000 people missing three days of work, losing jobs, not caring for family, and suffering the misery of jail.135 This figure probably represents at least $4 million136 spent by Alameda County taxpayers for unnecessary incarceration that could have been spent improving schools, fixing roads, or left in citizens’ pockets. 134 Less than 8 percent of those released with no complaint later had charges filed by the prosecutor. 135 It is not possible to tell from the data if any of the people released from custody with no filing later had charges filed.

Even for those who did, the initial incarceration was unnecessary and wasteful, as the case was not important enough to merit immediate attention or an effort by the prosecutor to maintain custody status. 136 This figure uses the statewide average cost for a day in jail of $113.87. Brandon Martin and Ryken Grattet, “Alternatives to Incarceration in California,” Public Policy Institute of California, April 2015.

“NOT IN IT FOR JUSTICE” 48 The data reveals another 3,353 people whose cases were dismissed, but who still spent an average of 27.8 days in jail, probably costing the county more than $10.5 million. The data shows a relatively small number of people given own recognizance release, but indicates it often took the courts a long time to come to that decision. Own recognizance release primarily occurred in the first week, but sometimes took weeks and months. 3,848 people were released this way, but they averaged 14.9 days in jail.

Had they been cited and released by the arresting officer, the county would have saved around $6.5 million. Of the 12,166 people who posted bond, most did so within the first day. Figure 3 shows a very small number of police releases compared to “no filings.” This comparison raises a question about the judgment of police supervisors keeping people detained whose cases will not be filed. It points to the potential danger of a book and release program dependent on the station supervisor’s discretion as compared with a rule requiring cite and release instead of arrest for most cases.

Human Rights Watch similarly analyzed booking and release data from five other counties. Sacramento County, which jailed a similar number of people as Alameda County in 2014- 2015, provides a comparison. In Sacramento, 5,094 people stayed in custody an average of 3.2 days with no charges filed. Sacramento booked and released about 19 percent of arrestees, over 10,000 people, within a day of arrest, likely reducing the number of “no filing” releases. 137 • 10,459 people stayed in custody an average of 4.3 days before bailing out, though most were out in about a day.

It is unclear how many of those who had to pay for their freedom ended up with no charges filed. • 953 stayed in custody until their cases were dismissed or a jury acquitted them. 137 Another 3,100 arrestees, mainly for drunk in public violations, were released within a few hours pursuant to California Penal Code

section 849. Had they been cited and released by the arresting officer, the county would have saved around $6.5 million.

49 H UMAN RIGHTS WATCH | APRIL 2017 • 4,316 people were not cited out, but got own recognizance release orders from the judge. They stayed in custody an average of 8.2 days; the mean was 2 days. • Just under 12,000 were released after finishing their sentence, spending an average of 25.4 days in custody. While not as dramatic as Alameda County’s figures, data from Sacramento shows a substantial number of people in custody with no charges ever filed. Many of those arrestees whose cases did not result in filing had already paid non-refundable bail fees.

The CEO of San Francisco’s Pretrial Diversion Project, Will Leong, said that the district attorney in his county also rejects a large number of cases. 138 Frank Robinson had a good job with the local transit service. 139 He was arrested in Alameda County on December 23, 2015, on a domestic violence warrant. The police set bail at $130,000. His mother co-signed for the bond and paid $1,000 with an agreement to make payments for the rest of the fee. He got out the next day. The prosecutor did not file criminal charges against him.

Frank said: And now that I am out of jail, I have to pay $200 a month to the bail bond agent. I don’t understand why I have to pay something when the charge was dropped. My family is stunned that this happened to me. 140 Nancy Wilson described being arrested several times by Oakland police on drug related charges, borrowing money to pay bail, only to have no charges filed. 141 Brandon Watkins had a similar experience, also in Alameda County.142 Police arrested him, claiming he had committed a battery.143 They set a $15,000 bail. His parents went to a bond agent, paid $1,500, and secured his release.

When Brandon went to court, he learned that there was no case filed against him. 138 Human Rights Watch interview of Will Leong, CEO, San Francisco Pretrial Diversion Project, San Francisco, October 9, 2016. 139 Human Rights Watch interview with Frank Robinson, Oakland, April 25, 2016. 140 Ibid. 141 Human Rights Watch interview with Nancy Wilson, Oakland, April 29, 2016. 142 Human Rights Watch interview with Brandon Watkins, Oakland, April 25, 2016. 143 California Penal Code

sec. 242.

“NOT IN IT FOR JUSTICE” 50 India Fuller was arrested in Sonoma County when her son’s ex-girlfriend accused her of assault.144 The police set a bail of $265,000. Various family members contributed to her bail fund, gathering $3,000 to give to the bondsman. India had been in jail for four days. The prosecutor dropped the charges, but she still pays $350 per month to the bondsman. She has fallen behind in her car payments. If she loses her car, she will lose her job as a driver.

Replacing arrests with non-custody citations would save police processing costs, reduce jail overcrowding, diminish the harms associated with even short periods of time in jail, like lost jobs and lost property, improve community relations with police, and limit police uses of force associated with “hands on” arrests. 145 144 Human Rights Watch interview with India Fuller, San Francisco, March 15, 2016. 145 International Association of Chiefs of Police, Citation in Lieu of Arrest: Examining Law Enforcement’s Use of Citations Across the United States, April 2016, http://www.theiacp.org/Portals/0/documents/pdfs/IACP%20 Citation%20Final%20Report%202016.pdf (accessed March 29, 2017).

51 H UMAN RIGHTS WATCH | APRIL 2017 III. Bail and Jail Result in an Unfair Justice System I’ve seen it. A time served offer on a custody defendant on a low-level charge, all they think about is, “Do I get out today? Can I get out today?” We have to take a look at whether we are contributing to the problem.146 —Chief Justice Tani Cantil-Sakauye, Cali fornia Supreme Court, March 12, 2016 The DA’s objective in making the bail so high and then raising it again when we came up with the original amount was solely to force a plea bargain. Then they kept dragging it out.

They were not in it for justice, they were in it for statistics.147 —Kevin Ocampo, Alameda County resident, who posted bond for his cousin, May 27, 2016 It’s like someone walks up and puts a gun to your head and says, “Hey, give me your money.”148 —Oscar De La Torre, executive director of Pico Youth and Family Center, November 21, 2016 Bail Coerces People into Giving Up the Right to Trial According to the latest available data: • 80.8 percent of California filed felony cases resolve through guilty pleas; • 16.7 percent are dismissed or transferred to another jurisdiction;149 • 2.5 percent go to trial. 146 Quoted in “Bail, the Next Frontier of Criminal Justice Reform,” Sacramento Bee, March 25, 2016, http://www.sacbee.com/opinion/editorials/article68311437.html (accessed March 29, 2017).

Chief Justice Cantil-Sakauye is a former trial court judge and prosecutor. 147 Email from Kevin Ocampo, on file with Human Rights Watch, May 27, 2016. 148 Human Rights Watch telephone interview with Oscar De La Torre, director, Pico Youth and Family Center, Santa Monica, November 21, 2016. Pico Youth and Family Center is a non-profit organization in Santa Monica, CA, committed to preventing youth violence. It provides various services and case management for hundreds of young people, many of whom have contact with the criminal justice system. 149 Over 90 percent of those are dismissals or acquittals.

Judicial Council of California, “2015 Court Statistics Report: Statewide Caseload Trends, 2004-2005 Through 2013-