Report Finds Two Systems of Justice

GOVERNMENT

TLR Staff Report

There are, in practice, two systems of justice in Orange County — one for the poor and one for those who are not poor, according to a new report.

This two-tiered system of justice appears to exist largely because of the inconsistent application of existing state and district bail and bond guidance from state and district court leadership, says Orange County Bail/Bond Justice, a faith-based nonprofit that has conducted a court observation program for the last year.

There also is race inequity in the system, the report notes. Black members of the community are disproportionately being impacted, it says. According to the report, the inconsistent application of bail and bond guidance can have significant and meaningful impacts for poor people and black people interacting with the justice system in Orange County.

“Today’s system of bail and pretrial detention unjustly penalizes people who are unable to pay, and especially impacts people of color,” the report’s executive summary states. “Defendants are held in jail on a pretrial status, meaning they have not yet been convicted of a crime. To get out of jail, they must pay bail or post a bond, often costing hundreds or thousands of dollars.”

The report is the result of an initiative launched in January 2019. Orange County Bail/Bond Justice began with two main goals: change unjust bail practices in Orange County; and provide assistance to people who cannot afford to pay their bail. The project centered on the court observation program.

Since early March 2019, at least two trained court observation program team members were present almost each court day to document how bail was set by the judge. Beginning in May 2019 the team began entering bail data into an Orange County Bail/Bond Justice database. Additionally, the team collected magistrate data.

This report provides 14 recommendations for reform. While all will help improve the equity and fairness of the bail/bond process in Orange County, we highlight 5 recommendations for high priority consideration. These are actions that can be taken now, with little to no additional resources, that would substantially improve the system. For each recommendation, we have noted if additional resources are needed to implement the reform, by two categories: None (no to very minimal additional resources needed) or $ (moderate additional resources needed, such as an additional staff person). We have also indicated the current status of reform by the criminal justice system in Orange County, given our understanding to date.

Individualize Conditions of Release – Ability to Pay. According to the law, conditions of release must be individualized, including the person’s financial resources. There needs to be an explicit assessment of the defendant’s financial resources/ability to pay along with other individual factors when setting bail. Additional Resources Required: None. Current Status of Reform: Unknown.
Clearer Policy on Use of Written Promise to Appear as the Default. Clearer and more consistent policy and procedures need to be adopted regarding required use of Written Promise to Appear and Criminal Summons in misdemeanor, felony charges, and traffic charges. This would also include adoption of a policy, similar to the policy adopted by the District Attorney in Durham in 2019, that the District Attorney’s Office would no longer recommend a secured bond for misdemeanors or low level felonies, with Court Observation Program Findings and Recommendations Orange County Bail/Bond Justice 8 the exception of cases involving violence. Additional Resources Required: None. Current Status of Reform: Begun efforts to implement.
Adopt Stronger Citation Release Practice and Transparency. Officers should be provided a card to carry with them detailing when citations should be used, and have training on implementation of the District’s citation policy. We need to track and report statistics on citation versus arrests not requiring a warrant. Additional Resources Required: None. Current Status of Reform: Begun efforts to implement.
Improve Communication on Court Date Reminders. In 19% of the cases we observed, the arrest was due, in part, to a Failure to Appear in Court. Currently, each person arrested is signed up for a system that texts court date reminders. However, defendants are often confused about court dates, especially when there are mental health or substance use issues, when court dates are changed, or when it is unclear if the person needs to be in court for a proceeding. Additional Resources Required: $. Current Status of Reform: Under consideration.
Additional Pretrial Release Services Program Case Management Support. When a judge grants release with Pretrial Release Services Program supervision, the Program monitors compliance with the conditions of release. The Program needs additional case management support in this period after the defendant has been released, particularly for cases involving mental health and substance use issues and domestic violence charges. Additional Resources Required: $. Current Status of Reform: Under consideration.

For the entire report and for more information about OCBBJ, visit ocbailbondjustice.org.

Click here to read our previous article about the Orange County Bail/Bond Justice Project.

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