By Rob Uriostegui, Esq. (Margolin & Lawrence Attorneys at Law)
Vote yes on Proposition 25 that ends cash bail. For years, prosecutors have used cash bail as a weapon against the accused to coerce an early plea deal. This interferes with the defendant’s right to a fair trial, right to counsel, and other due process rights. This is wrong. Prop 25 ends this.
The fear mongering by the bail bonds industry is false. Computers do not decide who gets released and who does not. Prop 25 provides that a defendant is to be released at arraignment unless the judge deems the defendant a serious threat to others. This is the same analysis used today under our cash bail system. Currently, if the judge finds that the defendant is an extreme threat or serious flight risk, the judge will either deny bail or set it at an amount that most could not afford. So today, if you are arrested and not a threat nor flight risk but have no money for bail, you will remain in jail until your trial is finished. This is unfair. With Prop 25, you get released.
There are many constitutional problems with cash bail. If you are arrested, you are “presumed innocent.” In theory and possibly once the trial begins, this might be true. But, in practice, you are not. In fact, when a judge sets bail, she must accept everything stated in the prosecutor’s complaint as true, which is based on a police report that is written by a highly trained officer in the art of police report writing that never paints a pretty picture about the defendant. This is where a judge, especially a former prosecutor, which many are, can get creative and deviate from the county bail schedule to increase bail citing aggravating facts that were relayed by the prosecutor that were relayed by the police officer. All those involved in the bail setting process have an explicit or implicit pro-prosecution bias that tend to lead to higher or no bail. Those who oppose Prop 25 have no answers for these realities.
A presumed innocent person is in jail if he cannot afford bail. How is this fair? It is punishment without due process of law. There is no difference between being in jail while awaiting trial and in jail after conviction. You are in jail. Yet, the Constitution says the state may only put someone in jail for conviction on proof beyond a reasonable doubt that the law was broken. However, the courts fail to apply the same due process protection to those awaiting trial. Judges have no problem locking up people based on suspicion and innuendo by police and prosecutors and justify this due process violation with the apparent right to bail. It is an illusory right for many if not most. The cash bail system is a fraud.
Cash bail gives the prosecution a huge advantage. Prosecutors always want bail and sometimes even ask the judge not to set bail and keep the defendant locked up. If they are feeling generous, they will not ask the judge to increase the bail. If you cannot post bail, it is pretty much game, set, match, in favor of the prosecutor. An incarcerated defendant must make the difficult decision whether to accept the prosecutor’s offer or fight the case. Unfortunately, in this calculation, the defendant’s actual guilt or innocence is not the deciding factor for most defendants. It is a simple cost benefit analysis. “I have to take the deal because I will do less time than if I fight it.” This is unfair and wrong. Innocent people should not be forced to plead guilty because it is the lesser of two evils. Prop 25 ends this.
Another problem with cash bail is that even if a defendant does have some money. It is usually limited. He must decide whether to use the money on a bail bondsman or a lawyer. Naturally, most will select bail because jail is an awful place. Also, since he has no money left for an attorney, he will have to take a court appointed lawyer not of his choosing. You cannot say with a straight face that taking away the defendant’s choice of lawyer is copacetic with the 6th Amendment right to counsel. Further, defendant’s pretrial incarceration interferes with his right to a fair trial in that it is much more difficult for the defendant to assist in the preparation of his defense, while he is in jail. Prop 25 ends this.
Prop 25 brings justice to those arrested for minor low-level offenses. One of the most attractive parts of Prop 25 is that, with the exception of four serious misdemeanors, those arrested for a misdemeanor must be released within 12 hours of booking (in a perfect world the law should say within 12 hours of arrest) without facing any “risk assessment” by Pretrial Assessment Services. Release from jail before arraignment is a right with no questions asked for those arrested for misdemeanors.
The fear mongering by the opposition that racist computers and “racially-biased computer algorithms” determines someone’s pretrial release is simply not true. Many arrested for low level offenses will not face any computerized risk assessment. They are just released quickly from jail. And just like today, even those arrested for serious crimes and have a risk assessment before his arraignment, the judge will still have the final say on someone’s release at arraignment. Prop 25 just removes money as another hurdle to someone’s release from jail.
Risk assessment only comes into play for those arrested for a serious offense and determine if release from custody should be granted before arraignment. Even if the risk assessment tool deems a person ineligible for release before his arraignment, the judge will still have the final say, at arraignment, and will decide if the defendant is released, not the computer.
The first misdemeanor is usually the “gate way drug” to more criminal charges, probation violations, and other convictions. When Big Brother has you on his radar, it’s like the Eagles’ Hotel California: “you can check out any time you like, but you can never leave” the criminal justice system once in. Many first-time offenders that cannot afford bail are desperate and want out. Then the deal from the devil comes: “well if you plead guilty, you get out today with time served.” Even if the case is weak against the defendant, the defendant will take that deal because he wants his freedom back. Because he has no money, he only gets his freedom back by falsely saying he is a criminal. He is now in the system. This is sick. Prop 25 ends this.
If you are unlucky to be arrested on a Friday with a holiday weekend, you could spend 4 or 5 days in the clink even though the law says you are “presumed innocent!” Opponents of Prop 25 simply ignore these serious flaws with cash bail, and its assault on our due process rights. This problem is exacerbated because our current system calls for the police to play lawyer and decide whether the case is a felony or misdemeanor. Sometimes they believe a felony was committed and set bail accordingly. But many times, after the prosecutor reviews the case, she believes only a misdemeanor was committed. Yet the defendant had to sit in jail for a few days because he did not have enough money for the felony bail. Freedom that is lost forever.
It is odd that some civil rights groups are on board with banks, insurance companies, the Republican Party, and other draconian “tough on crime” lobbyists in opposing Prop 25. The top five donors for the opposition to Prop 25 are surety insurance companies with Aladdin Bail Bonds being the top donor with over three million dollars donated. In the Official Voter Information Guide, Prop 25 opposition engages in sophistry of strawman argument and semantics. They title their opposition with: “PROP. 25 ELIMINATES THE RIGHT TO BAIL FOR EVERY CALIFORNIAN.” If you are poor, the right to bail is illusory. Period. The opposition has failed to show that the right to bail is not an illusory right for the poor. They have failed to show how the status quo is not discriminatory to the poor.
This begs the question that if civil rights organizations fear computerized risk assessments could have a racial bias , what do they think is happening now under the cash bail system with humans that are pro-prosecution setting the bail amount? Under Prop 25, defendants charged with misdemeanors do not even receive a risk assessment. They are just released from custody with no questions asked. This is a step in the right direction.
Remember, Prop 25’s “risk assessment” deals with release before defendant’s first court date. Those facing minor offenses must be released without any “risk assessment.” Those arrested for felonies go through the risk assessment. Prop 25 states the risk assessment process “shall be demonstrated by scientific research to be accurate and reliable.” If the alleged felon is deemed ineligible for release before his arraignment, it does not mean that he is locked away until his trial is concluded. In fact, Prop 25 states:
At arraignment, the court shall order a defendant released on his or her own recognizance or supervised own recognizance with the least restrictive nonmonetary condition or combination of conditions that will reasonably assure public safety and the defendant’s return to court unless the prosecution files a motion for preventive detention…
The so-called racist computers argument is simply a false narrative. A desperate attempt to preserve the 2-billion-dollar bail bonds industry. Under Prop 25, a defendant shall be released at his arraignment if the prosecution fails show by “clear and convincing evidence” that defendant poses a threat to the public safety or that electronic monitoring cannot guarantee the defendant will show up to his next court date. Even, today, under the cash bail system, if the prosecution shows you are a threat or flight risk, you are not getting out of jail because the judge will simply set bail at an outrageous amount that most could not meet or deny bail altogether.
Today, for all intents and purposes, poor defendants are denied their freedom while they await trial just because they are poor. With Prop 25, money or lack thereof is no longer the reason that a defendant must sit in jail while he awaits trial. Prop 25 makes the system fairer. A defendant should not be punished with jail simply because he wants his day in court.
Join Danny Trejo, League of Woman’s Voters, and California Medical Association in supporting and vote YES on Prop 25. Let convictions be based on the facts, not the lack of money.
For more information about this post, contact Margolin & Lawrence.