POP QUIZ!

The defendant, is charged with first degree robbery after taking money from a person who had just withdrawn cash from an ATM machine. You, the judge, have decided to deny him release on his own recognizance and set bail.

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A: Depends on your county.

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Fresno El Dorado San Francisco Ventura

Bail Cost for Robbery and Domestic Violence

Robbery (1st) Domestic Violence (273.5)

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When you don’t have much data, do you make any decisions based upon what you see?

Bail Realities

Racial and Ethnic Disparities

▪African American and Latino defendants are more likely to be detained pretrial than are white defendants.

This Photo by Unknown Author is licensed under CC BY-SA

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All ofit

10% 2 % Other

Let’s assume 10%, or $5K…

1% • SURETY

1%• BUILD UP

FUND*

8% •?

Premium is Negotatied…

1%

NO DATA

HIGH

INTEREST

Collateral:

FULL BAIL AMOUNT

Bail Realities

Who Pays the Bond Premium?

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Which Defendants Post Bail?

• Violent Offenses

• 16% were released pretrial

• 68% of those released secured release by posting bail

• High-level Felonies

• 21.7% secured release pretrial

• 63% of those secured release by posting bail

Labor Intensive & Complex for the Courts

▪ 1305(b) (bail agent relieved of obligations if court clerk fails to mail notice forfeiture satisfying statute within 30 days)

▪ 1305 (c)(1) If the defendant appears either voluntarily or in custody after surrender or arrest in court within 180 days of the date of forfeiture or within 180 days of the date of mailing of the notice if the notice is required under subdivision (b), the court shall, on its own motion at the time the defendant first appears in court on the case in which the forfeiture was entered, direct the order of forfeiture to be vacated and the bond exonerated.

▪ 1305.4 Notwithstanding Section 1305, the surety insurer, the bail agent, the surety, or the depositor may file a motion, based upon good cause, for an order extending the 180-day period provided in that section.

▪ 1306(c) & (f) (bail agent relieved of obligations if summary judgment is not entered against bondsman within 90 days; right to enforcement forfeiture judgment expires after two years),

▪ 1308(b) (clerk must serve notice of forfeiture judgment within five days).

An Example:

California Department of Insurance (2012-13)

▪1500 Forfeitures

▪32 Collected

▪$51,000,000 premiums

▪$588,095 collected (agent & “build up fund”)

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If a premium is not really

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And forfeitures

are not really paid…

Who is accountable?

CaliforniaConstitution

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This Photo by Unknown Author is licensed under CC BY-SA

More Bail Realities

Increased Reliance on Economic Bail

U.S. Department of Justice Report (2007)

GROWTHof pretrial inmate population

INCREASEDReliance on

surety bonds

REDUCEDUse of OR

releases

19 Counties Have Jail Caps

Butte, Calaveras, El Dorado, Fresno, Kern, Kings , Los Angeles, Merced, Placer, Plumas, Riverside, Sacramento, San Bernardino, San Diego, San Joaquin, Santa Barbara, Stanislaus, Tulare, Yolo

• In re Kenneth Humphrey (2018)

• Riana Buffin et al v. City & County of San Francisco (D.N.D. Cal., Oct. 28, 2015) No. 4:15-cv-04959

Examines Equal Protection and Due Process clauses and asks whether “the

Any Others?Federal Litigation in California

Welchen v. County of Sacramento(D.N.D. CA., Oct. 10, 2016)

Rodriguez-Ziese v. Hennessy(D.N.D.CA., Nov. 7, 2017)

No. 5:17-cv-06473

Coleman v. Hennessy(D.N.D.CA., Nov. 8, 2017) No. 3:17-cv-06503-EMC

Reem v. Hennessy (D.N.D.CA., Nov. 16, 2017)

No. 3:17-cv-06628-CRB

Arevalo v. Hennessy(D.N.D.CA., Nov. 20, 2017)

No. 17-cv-06676-HSG; and 9th Cir. Court of Appeals, Dec. 27, 2017)

California State Litigation

In re Bettie Webb on Habeas CorpusCalifornia Court of Appeal, Fourth Appellate District, Div. 1, Case No. D07280 Supreme Court of California, Case No. S247074

Have other jurisdictions limited or eliminated the use of commercial bail?

▪ Federally, the US Government uses Risk Assessment

Recently…

▪ Washington DC (1963)

▪ New Jersey (2017)

▪ Kentucky (1976)

▪ New Mexico (2016)