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Could bail reform bail out California’s overcrowded jails?

Image courtesy of Flickr user http://www.flickr.com/photos/spike55151/

A note to our readers: the names of incarcerated men in this story have been changed to protect their identities.

At the moment, Bill Johnson is wearing an orange t-shirt, orange pants, and wrist shackles. He’s sitting in an interview room in the San Francisco County Jail in San Bruno.

Johnson, who’s been in custody since December 31, 2011, was born and raised in San Francisco. He went to good schools and graduated from college. Now, he owns a business renting out luxury cars. After an incident late last year, Johnson was arrested and charged with arson and making a criminal threat. He’s been in jail ever since – four months – because having been charged with multiple felonies, his bail was set high.

“They set it for half a million dollars,” says Johnson. Johnson has made money, but he says he doesn’t have a half a million dollars. Most people don’t. He could have gone to a bail bond agent.

“Even with a bail bond, I’d have to come up with $50,000 cash,” he says.

Most bail bond companies charge an 8 to 10 percent premium. For Johnson, that’s $50,000 he’d never see again, even if he goes to trial and is found not guilty.

“That would be gone,” he says. “Up in thin air.”

Legally, bail has only one purpose: to guarantee that people show up for their court dates. Bail amounts are set by panels of judges in each county and they vary widely. A person arrested for possession of a controlled substance in San Francisco will automatically be assigned $15,000 bail. In Fresno County, it’s $5,000; in Tulare, it’s $25,000. Bail can be higher for more serious crimes, but it isn’t always. And regardless of their crime, anyone who can make bail can spend the money and go free until his or her trial.

In any case, it’s expensive.

Amanda Gullings is a graduate student at San Jose State University, currently at work on a report about bail with the Center on Juvenile and Criminal Justice.

“Seventy-one percent of California’s jail population is made up of pre-trial detainees who haven’t been sentenced and they’re there because they’re awaiting trial,” says Gullings. “Many of them are there because they can’t afford to post bail.”

And this is the population that she and other criminal justice reformers are now focusing on: the people who are in jail, but who haven’t been convicted of a crime, and cost taxpayers about $100 a day to keep locked up.

“There is a large number that could be released,” says Gullings. “What that number is, I don’t know.”

It’s hard to know exactly how much of that population is actually eligible for bail. KALW asked three Bay Area counties how many people could be released if bail money wasn’t an issue. None of the counties track that information. However, the San Mateo County Sheriff’s Office did a onetime survey of their jail and found that about 24 percent of the inmates could theoretically get out on bail if they could afford to do so. The San Francisco Sheriff’s Department did a case-by-case search for us and determined that about 500 of their 1,550 or so jail inmates that week could theoretically be out on bail. That’s nearly a third – not insignificant when more and more jail space is needed for what used to be prison inmates.

“In order to accommodate those newly sentenced offenders, we’re going to have to make room for them,” Gullings says. “And that’s going to be done one of two ways. That’s going to be done by expanding the county jails. Or releasing that large, pre-trial detainee population through either bonding them out, or pre-trial services.”

Santa Rosa bail bond agent Dale Miller has afairly simple solution that he thinks would help a lot. “Bails need to be lowered significantly,” Miller says.

Miller’s been an agent for 23 years. He’s on the board of two of the state’s largest bail bond associations. In theory, he benefits from high bails because people need to come to him to get them, but he doesn’t see it that way.

“I consider myself a professional gambler,” Miller says. That’s because every time he writes a bond, Miller’s at risk of losing a lot of money. And he says more and more, he’s seeing really high bails.

“It’s frustrating in this county. About three years ago, the average bond size was $8,000 - $11,000 and now the average bond size is over $20,000,” he says. “And the only reason I can give is that judges don’t want to appear soft on crime. And D.A.’s don’t want to appear soft on crime. And one of the easiest things to do is raise somebody’s bail.”

Financially, higher bails are risky for Miller. He has a limited amount of cash, so he can either take a small number of big bonds or a large number of small bonds.

“Because as a financial decision, bail is basically insurance,” says Miller. “It’s regulated by the insurance department. Insurance works this way: you spread risk amongst many policy holders. So if you translate that to bail and you’re only doing a few $250,000 bonds, any one of those would wipe you out.”

Jeff Adachi, San Francisco’s Public Defender, says bail reform should be at the top of the state’s agenda. “Who really needs to be in jail?” Adachi asks. “That should be the question. Not what the bail schedule says.”

Adachi would like to see lower bails and alternatives to the monetary bail system, like releasing people on electronic monitoring.

“People who are out on bail have more money than people who don’t. That’s the only difference,” he says. “It has nothing to do with risk. By definition, a money-based bail system discriminates against poor people. It’s also a risk to public safety because it fails to manage risk. Someone might be a greater threat to the public, but if he has money, he’ll go free.”

Adachi says that the reason we don’t have bail reform, whether it’s lowering bails, or finding alternatives to the monetary system is because no one’s really looking at bail as a serious criminal justice issue. According to a recent report on realignment by the ACLU of Northern California, 22 of the biggest 25 counties in California are expanding their county jails. Only nine are actively exploring other options for those awaiting trial.

That’s likely to change as California enters its second year of realignment in the fall, and counties are left with the option of overcrowding, or letting people out.

Crosscurrents realignment
Rina Palta reports on criminal justice for KALW News. Through stories of those affected by the system, she hopes to bring insight to an often misunderstood, polarizing, and politicized issue. Rina came to KALW from a print background, having worked in magazines for a number of years before being pulled into broadcast while earning a masters degree at UC Berkeley's School of Journalism. Along with KALW, her work has been published in Mother Jones magazine, the San Francisco Weekly, and Hyphen magazine. Rina edits and writes for KALW's criminal justice blog, The Informant, where you can find news and analysis on all aspects of California's criminal justice world.