A bail reform time warp

LAW & ORDER

Bail reform advocates are in a time warp. Their portrayals of the criminal justice system resemble Charles Dickens's England more than present day California. They describe jails filled to the brim with first-time, indigent, low-level offenders languishing behind bars and losing their livelihoods, families and dignity. California State Sen. Robert Hertzberg, proposed Senate Bill 10, to right these alleged wrongs. The bill's preamble claims, "[i]n 2016, the percentage of people in California jails awaiting trial or sentencing rose to 66 percent"

As noble as this cause may initially seem, the staggering 66 percent figure cited by Hertzberg -- and therefore his portrayal of the problem's scope -- is dubious. In October, the Judicial Council released a thoughtful 108-page report discussing the history of bail, describing the current bail system, and providing recommendations for reform. This report concedes that statewide data on the matter are scarce. It refers to the 66 percent number cited by Hertzberg, but acknowledges that it may not accurately be accurate.

The only concrete data cited by the Judicial Council on the percentage of bail eligible inmates awaiting trial came from three counties: Fresno (15 percent), San Francisco (53 percent), and San Mateo (59 percent). Curiously, none of these statistics approximate the mysterious 66 percent figure cited by Hertzberg.

This lack of data spurred me to examine Los Angeles County's data which is readily available on the Los Angeles County Sheriff's Department website. Again, the reformist numbers do not hold up. According to the LASD data, the number of bail-eligible individuals held in custody is closer to 26 percent. Note that Los Angeles is not only the largest county in California, but constitutes almost a third of the criminal population. The significant difference in the 26 percent bail-eligible population in the largest county in the state and the 66 percent claimed by reformists further undermines the movement's credibility.

Don't believe me, believe the numbers. The LASD average daily inmate population in March 2017 was 16,894. Of this, 6,988 were categorized as pretrial service custodies -- or, roughly 41 percent of the jail population. Yet this number does not accurately reflect those eligible for bail. 2,555 inmates were on no-bail holds. This lowers the population of interest to 4,433 -- or approximately 26 percent of all inmates.

When we dig into the numbers a little deeper and examine who is actually in custody, a clearer explanation of why those 26 percent remain in custody emerges. Ninety-one percent of this subset are in custody on a felony. Sixty-two percent are in custody for violence against a person, weapons related charges, or sex offenses.

Who is not in custody? Drug offenders. They make up a meager .7 percent of the pretrial in-custody population. Minor property crime offenders make up 1.7 percent.

Most significantly, misdemeanor offenders represent less than 1 percent of this population. Despite constituting 60 percent of the arrestees taken into custody -- totaling about 15,671 -- they account for 606 of the inmates and of that number, only 349 are eligible for bail.

These data are verifiable; Hertzberg's are not. The 66 percent figure is repeated so many times that people begin to believe it. But where are the data underlying that figure? Why is there no attempt to systematically gather data and portray the true scope of the problem? Sound solutions depend on it.

Los Angeles County's numbers suggest that, in fact, we do not unnecessarily put defendants in custody. Those in custody are there because our judges determined that the accused presented a danger to the public or seemed unlikely to appear in court. Moreover, defendants get bail review hearings, a lawyer, and all the protections afforded by both the federal and state constitutions. Hertzberg and his allies obscure these important facts.

There is no question reform is needed. As prosecutors, we constantly see the downsides of releasing violent felons on their own recognizance or bailing them out.

I can personally recall two recent cases. In one, a judge released a defendant arrested on a burglary charge. Days later that same defendant unloaded a semi-automatic firearm into a rival gang member's head. In another case, a defendant out on bail committed a double murder. The current bail system irredeemably failed these victims.

What are the true problems posed by the status quo? For one, we determine bail in a completely arbitrary manner. Take two life offenses that carry the same penalty: Penal Code Section 187, murder, and Section 288.7, sexual intercourse with a child under 10. The bail for Section 187 is $2 million. The bail for Section 288.7 is $200,000. Explain the logic on that one. Moreover, how are we safer simply because someone posted bond?

These are merely preliminary musings. To begin a serious conversation about bail reform we need credible data. We need to understand: What are the current failings? How are victims impacted? How can we minimize incarceration without jeapordizing public safety? The reality is that no one is currently compiling this information in a systematic way. Analysis and opinions abound, but the quality of the arguments is only as good as the quality of the information supporting them. Until we solve that foundational problem, we will not accomplish effective bail reform.