Efforts to reform bail system are also premised on distortions

What does the Legislature and its crop of reckless social engineers want to do now to increase anarchy in our state? First, they passed Realignment to force state prisoners to serve their time in county jails. Next they passed Proposition 47 to reduce felonies to misdemeanors. After that they passed Proposition 57 to release all those still in prison who were not included in their previous efforts to free criminals. Then they go after prosecutors spouting their nonsense that there is an epidemic of misconduct and wrongful convictions. Now they want to let everyone out by eliminating the bail system. [“A smarter criminal justice system,” Aug. 2, 2017.]

In every single one of these efforts they lied to the public to accomplish their goal. They called Prop. 47 the “Safe Neighborhoods and Schools Act,” but it had nothing to do with safety. It had to do with pampering criminals by reducing punishment on selected crimes. It didn’t make even one neighborhood or school safer. Quite the contrary. In fact, Prop. 47 by all accounts is responsible for an increase in crime. They called Prop. 57 the “Safety and Rehabilitation Act,” but it has nothing to do with safety or rehabilitation. It has to do with pampering criminals by letting them out of prison earlier. It won’t make anyone safer. Quite the contrary. Then they decided to go after rogue prosecutors, but they sold their lie by exaggerating the frequency in which prosecutors commit misconduct. Now they want to let everyone out of jail by doing away with bail. My problem is that they are either misleading in their reasoning or outright liars.

Below I clarify a few of Carter and Suvor’s distortions.

“Thousands of people presumed innocent are held in jail cells every day.”

That is not an accurate statement of law. No one who is “presumed innocent” is held in custody, because no one who is arrested or charged with a crime is presumed innocent. The “presumption of innocence” is a principle applied to the actual trial of the case at which time the court instructs the impaneled jury not to assume that the defendant is guilty just because he was arrested and held in custody. The presumption of innocence does not legally apply anywhere else, nor should it.

If the police believed that the accused was innocent, ostensibly because there was no evidence that the accused committed a crime, they would not arrest him or her. When weighing whether to file charges, if the prosecutor did not believe the accused was guilty, then he or she would not file the case. Neither the police nor the prosecutor have any duty to presume the accused is innocent. Rather, their duty is to examine the evidence and see if there exists proof that the accused is guilty.

If the case is filed, bail is set presuming the charges are true, not presuming innocence. Within a 48-hour period the judge must review the police reports to determine if there exists sufficient probable cause to proceed. Then there is an arraignment where the defendant first appears in court and pleads guilty or not guilty. The judge can reexamine bail after the defense makes their arguments, but the judge doesn’t presume the defendant is innocent when setting bail. Quite the contrary. The case is then scrutinized during the preliminary hearing, which is like a nondress-rehearsal of the future jury trial, in which the judge must determine whether there is sufficient evidence to hold the defendant.

At none of these proceedings is the defendant presumed to be innocent. Thereafter, the defense can make motions arguing that the evidence was insufficient. The law on these motions is quite clear. Any defense motion to have the case dismissed is never based in any way on the presumption that the defendant is innocent.

These “people” who are held in jails are people accused of crimes. They are accused because there is a legitimate and repeatedly scrutinized basis for believing they are guilty. Therefore, this sentence is just one more lie in the ongoing barrage of lies designed to dupe the public.

Bail is set based on a number of factors which Carter and Suover don’t bother to address. They go on to propose a system where “in making bail decisions, courts will weight facts such as a defendant’s criminal, employment, substance abuse, and failure-to-appear history.” But the courts already do that. What crime did the accused commit? If it is a serious or violent crime like robbery, then the bail is higher than if it is a minor crime. If they have a history of criminal activity, then bail is set higher. It’s reasonable to assume that if the defendant has a history of criminality, then this latest crime is proof that he refuses to learn. If the defendant used a gun, or is a gang member, or inflicted great bodily injury on the victim, or if the theft is great, then bail is set higher. And if the defendant has a history of failing-to-appear to his prior court cases, then bail is set higher. Makes sense, right?

Yet Carter and Suvor infer that this system, already in existence, needs to be created. Right now there are two general criteria employed in the setting of bail: (1) Ensuring that the defendant shows up for court; and (2) keeping the public safe from criminals. A system to analyze already exists and works.

“Across the United States, millions of people have been incarcerated while awaiting court simply because they cannot come up with the cash for their release.”

First, thank goodness these criminals are incarcerated. Second, I object to the use of the word “simply.” Defendants are not awaiting court while incarcerated “simply” because they have no cash, but because they are accused of crimes. That is, they have victimized someone and laws permit us to hold them while we sort out what to do with them. I disagree that “the most common reason someone is held in jail before trial is “inability to make bail.” Rather, the most common reason is that they were caught committing a crime or the evidence corroborates their criminality.

“[T]he flawed bail system disproportionately impacts poor defendants and fails to produce intended result.”

I sort of agree. I believe it is flawed, but not for the reverse logic Carter and Suvor assert. If the intended results of bail are that the defendant is prevented from committing more crimes and victimizing more citizens, and setting bail also results in the defendants attending every court appearance, then clearly the bail system is succeeding.

“The current bail system exacerbates jail overcrowding and compromises public safety.”

Here we go again. Once again, this is really all about reckless social engineers letting criminals out, and absolutely nothing about public safety.

“If bail were reduced — or eliminated — evidence suggests that few convicts would have to be released early merely to alleviate overcrowded conditions.”

This is their only statement I totally agree with. Let me translate: If less people are in jail, then less people have to be released. If less people are in jail, then the overcrowding is less. Of course. But is this a compelling argument for doing away with bail, or a tautological absurdity?

“[P]retrial incarceration wastes taxpayer money…”

Do Carter and Suvor really contend that taxpayers would prefer to save money by having criminals running loose while their guilt is decided? Taxpayers who are the victims of crime, pay money to fund the police, fund the courts, pay for judges, court clerks, court reporters, bailiffs, and attorneys to represent the criminals, then for juries and appellate judges, and after that state attorneys to respond to appeals, etc., all to put criminal behind bars, and then pay for the jails and state prisons to house them. But what really upsets these taxpayers is the cost of housing criminals after we catch them? I don’t think so. Carter and Suvor do not bother to discuss how much these freed criminals would cost in terms of the havoc they wreak while awaiting trial.

If there is a legitimate disproportionate treatment on Latinos and African-Americans because they can’t afford bail, and not because they are a danger to the community, or are unlikely to make their court appearance, or because they do a disproportionately greater amount of crime in select communities, then I agree, that’s unfair and prejudice and discrimination should never be tolerated in a system that seeks justice. I just don’t know that it’s true. But that has more to do with correcting the system than ending it.

“Time unnecessarily spent in detention hinders arrestees from taking care of their families, jobs and communities.”

Of course. But let us not forget that the arrestee earned his place in detention by ostensibly engaging in a crime. Also, it seems to me that we should not treat orphans, bachelors or the unemployed different from married defendants with jobs and with families who risked all that by committing crime. In fact, a decent argument could be made that single, childless, unemployed orphans really, beside their actual victim, didn’t hurt anyone but themselves and should be treated proportionately better than people who voluntary disrupt the lives of their families and employers.

“If we are serious about ensuring that a person who is accused of a crime appears in court, there are better ways to secure a defendant’s presence while promoting public safety.”

Carter and Suvor failed to mention any of these “better ways” — or even one “better way.”

“[W]e need to replace money bail systems with individualized, pretrial assessments ground in risk-based decision-making.”

We already have that. Courts already weigh those factors in setting bail. We have a division called Pre-trial Services that make these assessments and determines whether the candidate is a good risk for OR (own recognizance) release on their promise to appear without the need to post bail. These decisions are made every day. This is the same kind of argument made regarding Prop. 47, where proponents promised drug treatment programs for users of drugs, and we already had DEJ (Deferred Entry of Judgment), Prop. 36 (drug treatment program), and Drug Court, all designed to assist defendants who were serious about addressing their drug problems. But the existence of those programs were ignored and denied by those selling Prop. 47, just like Carter and Suvor ignore the existence of Pre-Trial Services.

“[Some officials] want to use their resources strategically, targeting the most violent and dangerous threats to our communities, not nonviolent, low-level offenders who are likely to show up for court.”

I get that some officials want this. So Carter and Suvor’s solution is to end the bail system, but not to give the officials more resources to deal with the low-level offenders? They want to spend $10 million to replace the practice of money bail. I would like to see that money used to build large dorms in state prison. Obviously, with a bunch of criminals running around loose, there will be a need for more police and more probation officers and pre-trial service employees to monitor them. More crimes will occur, so more resources will be needed to investigate that crime and prosecute it.

“It’s an investment in a more effective, equitable, and smarter criminal justice system — one that works for everyone.”

Are these two investing in criminals? To me, as a general rule, that is not a good investment. Sometimes everything is backwards. Let’s say you are sentenced to five years. Well, they give you what is called “good/work time credit” and you can get out early if you behave while you are in jail. Essentially, that’s a lie, too, because they let everyone out early. Why don’t they add time if you misbehave? In other words, you do an actual five years which you probably deserved, but then will do more if you don’t cooperate while in custody?

In the same vein of reverse logic, instead of ending bail so poor people can get out, why not end bail so rich people stay in. Why isn’t this on the table?

This opinion is entirely the author’s and not authorized by the Los Angeles County district attorney’s office.