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September 22, 2016

Dear Santa Clara County Board of Supervisors: I have read with great interest the Consensus Report on Optimal Pretrial Justice by the Santa Clara County Bail and Release Work Group, as well as the response to that report from the California Bail Agents Association, Industry Report on Working Group Recommendations on Bail Reform in Santa Clara. I appreciate the opportunity to provide my analysis of these reports. I’d like to preface my comments, however, with a brief background on the Pretrial Justice Institute. PJI is a 40-year-old national organization headquartered near Washington, DC that works with policymakers and justice system stakeholders from across the United States to advance safe, fair, and effective juvenile and adult pretrial practices. Among many other things, we play a leadership role in the Pretrial Justice Working Group, a consortium of national stakeholder organizations—including police, prosecutors, the judiciary, and others—who collaborate to support commonsense solutions to current pretrial challenges. We also created Smart Pretrial, a demonstration project funded by the U.S. Department of Justice’s Office of Justice Programs that is working with three competitively selected sites—Denver, Colorado; Yakima County, Washington; and the state of Delaware—to show how jurisdictions can develop, implement, and sustain fairer and more effective pretrial risk assessment and supervision strategies. And, finally, this past summer, we launched an online learning community called the University of Pretrial for stakeholders others interested in advancing pretrial reform based on legal and evidence-based strategies. Based on the strength of initiatives such as these, we are widely viewed as the nation’s leading resource on optimizing pretrial practice. Let me begin by remarking on the collaboration that was required by the members of the Santa Clara County Bail and Release Work Group, which included the judiciary, law enforcement, prosecution, defense, pretrial services, probation, jail administration, court administration, community-based groups and county government, to reach consensus on the impressive list of recommendations contained in its report. Achieving consensus on effective ways to balance the three goals of pretrial justice—maximizing release, maximizing public safety, and maximizing court appearance—takes courage and commitment, and the Work Group should be congratulated.

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Up until recent years, it would have been unheard of to see such consensus among such diverse stakeholders on these issues. But as more and more officials around the country are seeing the need to modernize bail practices, bringing them up to legal and evidence-based standards, such efforts are coming into common practice. And with that, we are seeing around the country what we are now seeing in Santa Clara County: the only entity that benefits from the current money-based system, the commercial bail bonding industry, standing in lone dissent. It is worth noting just how lonely that dissent has become around the country. All the key stakeholder groups, including the Conference of Chief Justices, the Conference of State Court Administrators, the International Association of Chiefs of Police, the National Sheriffs’ Association, the American Jail Association, the Association of Prosecuting Attorneys, the Council of Chief Defenders, the National Association of Criminal Defense Attorneys, and the National Association of Counties have issued policy statements or resolutions in the past few years calling for the use of the very legal and evidence-based pretrial justice practices that the California Bail Agents Association report criticizes. As the Work Group Report notes (pp. 52-54), several states around the country have moved, or are moving, toward implementing these practices. This unmistakable, historic movement away from the antiquated bail system raises the question: are all of these officials wrong and the bonding industry, alone, right? Many of the recommendations of the Work Group mirror what other jurisdictions seeking to enhance legal and evidence-based pretrial justice practices have been doing, including: • Clarify the criteria for using citation releases, with the aim of expanding their use • Expand the use of pretrial diversion • Expand the use of pretrial supervision, particularly to address public safety, including more intensive supervision strategies for those posing high risks • Employ the use of domestic violence-specific risk assessment tools • Update the county’s information system • Collect and report data on bail outcomes for all release types • Engage with the legislature to seek new statutory language that would: o Establish a statewide commission that would explore the efficacy of secured bonds 7361 calhoun place, suite 215 rockville, md 20855 240.477.7152

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o o

Provide the court the option of using unsecured bonds Align the California statute with the federal law, which provides § a strong presumption for release on recognizance, that presumption must be overcome to impose conditions of pretrial release, § any conditions imposed must be the least restrictive needed to provide reasonable assurance of public safety and court appearance, § financial bonds cannot be used to address concerns about public safety, and can only be used when no other conditions can provide reasonable assurance of appearance, § financial bonds cannot result in the pretrial detention of the individual, and that § in those instances that meet the eligibility criteria laid out in statute and when the court finds by clear and convincing evidence that condition or combination of conditions can provide reasonable assurance of safety or appearance, the person may be held without bond.

The first recommendation of the Work Group is to incorporate pretrial justice-related goals into existing reform efforts. This recommendation recognizes how pretrial justice impacts and interacts with the rest of the criminal justice system as well as the health care delivery system. It is easy to see how most of the recommendations that follow this first one would enhance existing reform efforts within the county relating to behavioral health and domestic violence. We do have cautions about some of the recommendations. Although the report very clearly articulates the problems associated with secured money bail, several of the recommendations seem to focus on better ways of administering money bail without the current near-exclusive reliance on commercial bail bonding companies. These recommendations include establishing a bail funds program, making it easier for defendants to pay bonds to the court or jail through credit or debit cards, and instituting ten percent deposit bail. While implementing these recommendations, if accomplished in combination with the other recommendations in the report, would likely lead to less pretrial detention resulting from a person’s inability to pay a bond, there would still be some

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persons in jail because they could not pay to get out. If some form of secured bonds is to remain in use while, as the Work Group recommends, the legislature appoints a commission to study the efficacy of the continued use of money, efforts must be made to assure that secured money bonds are set only to address risks related to failure to appear in court, not public safety (for the reasons described on page 30 of the Work Group report), and only when no other less restrictive non-financial condition can provide reasonable assurance of appearance. There is one recommendation in the report with which we disagree. It is the one that says that the legislature should “[p]rovide additional guidance to courts in setting bail schedules: advocate for reforms to bail setting, including . . . adopting more detailed guidance for courts on how to set appropriate bail amounts for particular types of offenses; and/or advocating for other changes to improve uniformity and encourage the use of empirical data in setting bail schedules,” p. 5. Regardless of whether bail schedules are set uniformly throughout the state or are established by each individual county, their flaws remain. Bail schedules assume that the name of the charge alone reflects the risks posed by every individual charged with a particular offense, and the specific dollar amount listed in the schedule for that offense is exactly what is needed to address those risks for every individual charged with that offense. The science tells us that both of these assumptions are false, and federal district courts around the country have begun ruling that the use of bail schedules is unconstitutional. We recognize that “shifting the paradigm of money bail,” as the Work Group report describes its hopes to move away from the reliance on money at bail, is a long process with many intervening steps, but we believe that the use of bail schedules is so egregious and of such dubious constitutionality that the county should make replacing it with the use of its already available risk assessment tool a top priority. One final thought on the Work Group report. It may be helpful if the Work Group set some goals based on their recommendations. For example, the report noted that the current non-financial release rate is 10.5%, and current pretrial detention rate is 65%. If these recommendations were implemented, what would the county like to see these rates at a year later, two years later? What other outcome or performance goals are the Work Group and the County interested in?

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The response to the Work Group report from the California Bail Agents Association is the typical industry answer to any bail reform efforts that are based on legal and evidence-based practices. As the industry is want to do, the Bail Agents’ report criticizes the use of empirically-derived risk assessment tools, saying: “The ‘science’ behind the risk assessment tools is always amorphous and often dubious,” p. 8. The report does not seem to grasp the irony of an insurancebased industry calling into question the use of actuarial-based risk assessments, the very backbone of any insurance company’s business model. Curiously, the report talks about the expense and difficulty of developing a validated pretrial risk assessment tool, seemingly to convince counties, like Santa Clara, against undertaking the process of doing so. But this point is undermined by the fact that Santa Clara County has apparently overcome whatever difficulties exist—since the County already has such an instrument, one that was developed and tested in the County. Just as the Work Group report foresaw, the Bail Agents’ report cites studies based on data collected by the Bureau of Justice Statistics to show that those released to commercial bail bonding companies perform better than those released by other means. But as the Work Group report noted: “A 2007 report from the federal Bureau of Justice Statistics (BJS) provided data suggesting that defendants released on surety bonds or full cash bonds had a predicted FTA rate of 20% compared to 24% for release on OR. Bail bond agents, both national and local, have cited the BJS data to support the notion that the evidence demonstrates commercial bail bonds are the most effective means of pretrial release in terms of avoiding FTA. However, after the bail bond industry began relying widely on its figures for this purpose, BJS issued a data advisory warning that ‘the data are insufficient to explain causal associations between the patterns reported, such as the efficacy of one form of pretrial release over another,’” pp. 31-32. Indeed, the emphasis of the Bail Agents’ report is on court appearance, essentially ignoring the other two goals of pretrial justice, release and public safety, and effective ways to balance the three. In fact, regarding one of the goals, while trying to make a different point, the report inadvertently highlights how bail schedules endanger public safety, stating: “Bail schedules also facilitate jail [sic] in releasing defendants on weekends or odd hours without the need to call

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a specialty court hearing to determine bail or fund a whole department to operate 24 hours a day, 7 days a week,” p. 19. The fact that potentially dangerous individuals can buy their way out of jail before ever seeing a judge or ever having been assessed for risk using an empirically-derived tool is precisely why groups such as the International Association of Chiefs of Police and the American Bar Association have come out very strongly against the use of bail schedules. The Bail Agent’s report disagrees with a very important Work Group recommendation relating to ways to deal with those who pose unmanageable risks. The Work Group had recommended: “advocat[ing] for amendments to state law that give judges clearer discretion to order pretrial detention – while ensuring procedural safeguards for defendants – where they find that no release conditions can ensure a defendant’s appearance or protect public safety. This would reduce instances in which courts set extremely high bail amounts in order to ensure pretrial detention of high-risk defendants,” p. 5. In stating its disagreement with this recommendation, the Bail Agent’s report awkwardly skirts around the topic without addressing it, stating: “Judicial officers currently have clear direction and complete discretion to order whatever type of pretrial release they deem best,” p. 20. This response is not surprising. The bonding industry typically argues against any provisions in any state constitutions or statutes that provide for detention without bond for those whose risks are found by the court, by clear and convincing evidence, to be unmanageable and should therefore be held without bond. The Bail Agents’ report also disagrees the Work Group recommendation to expand and formalize pretrial diversion, although it is clear from the explanation offered that the authors do not even understand what pretrial diversion is. “We disagree with the Report in this recommendation. In the face of multiple doubtful claims in the Report, many of which are not only unsupported, but are actually contrary to published studies, we are compelled to remind the reader of what the true facts are: bail works. It works effectively, it works at no cost to the tax payer, and it works at very reasonable cost to the customer,” p. 22. Near the end of their report, the Bail Agents state: “We are against releasing dangerous defendants that put public safety at risk …,” p. 25. We could find nothing in their report that addresses the role that commercial bail

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bonding can play to assure that “dangerous defendants that put public safety at risk” are not released. In the Introduction to their report, the Bail Agents assert that “to advocate for the complete abolition of commercial surety is an extreme position and seeks to fix a complex, multifaceted system by attacking one individual component,” p. 2. This is likely a response to one of the recommendations of the Work Group, which was to “eliminate for-profit bail bonds in California,” p. 4. If that were the Work Group’s only recommendation, then we would agree with the Bail Agents that the Work Group was indeed seeking to fix a complex, multifaceted system by attacking one individual component. But that is not what the Work Group does with its report. The range of the recommendations offered by the Work Group, and the discussions that accompany them, demonstrates that it fully understands how complex and multifaceted the system is, and it has put together a thoughtful, comprehensive, consensus-driven plan to improve that system. The Bail Agents’ report, on the other hand, offers nothing more than the status quo. I hope that these comments are helpful. Please let me know if I or my staff can answer any questions. Thank you. Sincerely,

Cherise Fanno Burdeen Chief Executive Officer Pretrial Justice Institute

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Pretrial Justice Institute Letter to Santa Clara County Board of Supervisors  
Pretrial Justice Institute Letter to Santa Clara County Board of Supervisors