Reviving the carefully limited exception: from jail to GPS bail.
Author | Causey, Alexis |
Position | Global positioning system - Introduction through II, B.3. How it works today: the mechanics of our current bail system, p. 59-87 |
"In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception."
--United States v. Salerno, 481 U.S. 739, 755 (1987).
ABSTRACT
California's prisons are grossly overcrowded, violating the United States Constitution. (1) To solve this problem, the California Legislature passed the Public Safety Realignment Act, Assembly Bill 109. (2) The Act aims to decrease prison populations by sending non-violent, non-serious, and non-sex offenders from state prisons to local counties. However, county jails are also overcrowded and capacities continue to be strained in the wake of Realignment. Over two-thirds of the daily county jail population has not been sentenced for any crime. (3) Indigent pretrial detainees who are otherwise eligible for money bail release are forced to stay in custody because they cannot afford the cost of bail. To remedy the inequities in our bail system and the state's increasing jail populations, California counties should implement electronic GPS monitoring for pretrial detainees facing non-violent, non-serious, and non-sex related charges. By placing these defendants on electronic GPS monitoring, courts will have assurances of attendance at hearings and trials without relying on county resources for incarceration. Because only low-level offenders would be eligible for pretrial electronic GPS monitoring, public safety would not be at risk. Further, offenders will be able to continue working, attending school, and managing their daily life, which will serve to minimize the negative effects of incarceration on the individuals, their families, and their communities.
INTRODUCTION I. CALIFORNIA'S CORRECTIONAL INSTITUTIONS ARE OVERCROWDED A. Overcrowding negatively impacts inmate and staff health B. Overcrowding negatively impacts inmate and staff safety C. Correctional spending is financially burdensome for the state, local counties, and taxpayers D. Prison overcrowding in California violates the Eighth Amendment's prohibition of cruel and unusual punishment and must be remedied E. California's primary response to Plata and Coleman has been passing Assembly Bill 109, the Public Safety Realignment Act F. Realignment has decreased prison populations; however, jail populations are now on the rise II. THE CURRENT BAIL SYSTEM IS BROKEN: INDIGENT PRETRIAL DETAINEES CANNOT ACCESS ITS BENEFITS, LEADING TO INCREASED JAIL POPULATIONS A. Pretrial detainees account for the overwhelming majority of California's county jail population B. How did we get here? A look back at the evolution of money bail 1. In the beginning: the prohibition against excessive bail and concerns about risk of flight 2. Additional considerations in the modern bail decision: Offender dangerousness and public safety 3. How it works today: the mechanics of our current bail system C. The private bail bond industry is unregulated and does not align with the policy considerations of bail and pretrial release 1. Bail bondsmen face substantial risks, both financially and physically, necessitating their substantial fees as insurance 2. Bail bondsmen are in the business of making money, and are not concerned with ensuring the fair administration of justice 3. Indigent defendants may not be able to pay the bond and, therefore, will be stuck in jail III. IMPLEMENTING GPS MONITORING FOR PRETRIAL DETAINEES FACING NON-SERIOUS, NON-VIOLENT, AND NON-SEX RELATED CRIMES WILL CURE INEQUITIES IN THE BAIL SYSTEM AND WILL DECREASE LOCAL JAIL POPULATIONS A. Complete release of pretrial detainees is undesirable and unworkable B. Pretrial services are a successful alternative to pretrial detention, but alone, are not enough to solve jail overcrowding C. GPS for Dummies: electronic GPS monitoring as a viable alternative to pretrial detention D. Several California counties are already interested in electronic GPS monitoring programs E. All California counties should use electronic GPS monitoring for pretrial detainees facing non-serious, nonviolent, or non-sex related offenses as an alternative to incarceration 1. Electronic GPS monitoring will increase fairness for indigent pretrial detainees 2. Electronic GPS monitoring will increase efficiency and transparency in the criminal justice system 3. Electronic GPS monitoring will decrease jail populations 4. Electronic GPS monitoring will ease financial strain on county governments 5. Electronic GPS monitoring will promote public safety F. Implementing a pretrial electronic GPS monitoring system CONCLUSION INTRODUCTION
This Article addresses two distinct problems: (1) county jail overcrowding in California, and (2) the current bail system's discrimination against indigent pretrial detainees.
This Article proposes that California counties implement GPS electronic monitoring for pretrial detainees facing nonviolent, non-serious, and non-sex related charges as opposed to setting money bail and using in-custody detention. Instead of housing low-level pretrial detainees in county facilities, local governments can decrease costs by placing these offenders on electronic monitoring while they await trial. Adopting this model of "alternate incarceration" as opposed to simply releasing pretrial detainees on their own recognizance will ease financial and logistical burdens on county resources while still protecting the community's concerns about public safety.
The United States has the largest jail and prison populations and the highest incarceration rates in the world; its admissions continue to increase each year. (4) In 2011, California Governor Jerry Brown signed into law the Public Safety Realignment Act, Assembly Bill 109, to become effective October 1, 2011. (5) Realignment is the cornerstone of California's solution for reducing the number of inmates in the state's thirty-three prisons to 137. (5) percent of design capacity by June 27, 2013. (6) The Act allows nonviolent, non-serious, and non-sex offenders to serve their sentence in county jails instead of state prisons. (7)
While state prison populations have decreased under the Act, county jails are simultaneously experiencing an influx in nonviolent, non-serious, and non-sex offender prisoners and must decide how to best manage the increased demand on county resources. In 2012, California had an average daily county jail inmate population of 77,340. (8) The average annual cost for housing each inmate is $27,012. (9) Thus, California is paying approximately $2.1 billion annually for its county jail population.
In analyzing the county jail population and considering alternatives to in-custody detention in the wake of Realignment, it is important to understand who exactly is housed at the county level. In California, approximately sixty-two percent of the daily county jail population has not been sentenced for any crime. (10) This means that approximately two-thirds of the jail population consists of pretrial detainees, those whose criminal cases have yet to be adjudicated.
Pretrial detainees may be eligible for release if a judge determines that they qualify for money bail, and if so, if they can afford it. (11) The California bail system aims to serve the public interest by protecting communities from unsafe individuals and by incentivizing pretrial detainees to appear for all court proceedings. (12) Judges are tasked with setting bail at a meaningful monetary amount in order to achieve these goals. (13) However, there comes a point where bail may be pointless for certain offenders. (14) For the truly indigent, no bail amount is meaningful because the value of affordable bail for them would actually be zero. (15) Thus, indigent pretrial detainees may have no alternative to in-custody detention, regardless of their charged crime.
This Article suggests one solution to remedy two distinct problems: the inequities in the bail system and the current jail population boom. First, the proposed solution allows pretrial detainees who do not pose an individual threat to community safety a viable, non-financial based alternative to incarceration. Offenders will be able to continue working, paying taxes, attending school, and receiving drug treatment--all of which will serve to minimize the negative effects of incarceration on them and the community. Second, the proposed solution will decrease the financial and structural burdens overcrowding has on local California governments by decreasing jail populations.
Part I of this Article explores the negative impacts of jail and prison overcrowding in California (16) and the Supreme Court's recent mandates on reducing state prison populations in particular. In response to the Supreme Court's ruling, the California Legislature passed the Public Safety Realignment Act. However, while prison populations have decreased as a result of the new Legislation, recent data suggests that jail crowding is actually getting worse.
Part II of this Article begins by showing that an overwhelming majority of offenders housed in county jail are pretrial detainees. Most pretrial detainees qualify for money bail release but are unable to afford it. The Article then follows with an overview of the state's current bail system including its history and underlying policy rationales. Next, the Article describes how bail operates today, including the process a defendant uses to "buy" his release through the commercial bail bond industry.
Part III of this Article suggests using electronic GPS monitoring for pretrial detainees facing non-serious, non-violent, and non-sex related offenses as an alternative to detention in county jails. Shifting from in-custody detention to electronic GPS monitoring will not only cure the inequities in the bail system, but will also decrease local jail populations. This Article outlines various configurations of pretrial electronic GPS monitoring systems and how each design aligns with distinct policy concerns. Given the flexibility of modern day technology, county...
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