Think and Act Locally When It Comes to Criminal Justice

I’m glad to see this coverage in the New York Times today acknowledging that the federal government isn’t the main event when it comes to mass incarceration, an idea to which I have long subscribed. I’ve actually been planning a longer post about this, focusing on the ways in which criminal legal scholarship is disproportionately focused on the federal system, but much of my time has been taken up with a class that focuses on the extremely local drivers of criminal justice: county-level actors.

I’ve already blogged about this class before, but as my students have really started to crank out their research, I wanted to revisit it. The class focuses on bail and pretrial release in Santa Clara County, CA, a county of over a million people that houses San Jose and most of Silicon Valley. We chose this focus for a number of reasons. Santa Clara University, where I teach, is a Jesuit School, and part of our mission is to seek social justice. Bail and pretrial release decisions disproportionately affect the poor in our own community, so that was an easy sell. We also had the opportunity to contribute our research to a county-wide Bail and Pretrial Release Working Group that is seeking to address the issue. Finally, on both an intellectual and policy level, bail is intensely local in California. Bail schedules are set by a county panel of judges, there is discretion built into the system at the officer level and the jail level, and jail capacities and practices vary from county to county. It’s almost impossible to get an accurate picture of bail in California without looking intensely at the local level, because there is no single statewide system. There are also important systemic knock-on effects—how failure to make bail embeds criminality, for example—that are best examined by looking at a single county system and its agencies and practices in depth.

More than that, though, there is often a wide gap between law on the books and law on the ground, as Mona Lynch has observed (among others). My students just spent a week watching court, and many of them were struck by how widely practices varied from courtroom to courtroom, how almost all of the procedures fell short of what was supposed to happen, and, in some cases, they wondered whether what they observed was even legal. This is an area of the law—and a population—that gets very little attention, partly because it’s local, partly because it concerns non-capital crimes, partly because there are just so many cases stuffing the channel. These are crucial parts of the procedure for the accused that don’t touch on any of the topics typically taught in law school. In most law schools, you read Stack v. Boyle and U.S. v. Salerno at most; that’s all you get for bail.

So I wanted to take this time to briefly highlight some of the student work that’s been done in the class. First, Shauna Lord provides a comprehensive look at the Santa Clara County bail bond market, finding that bail bond companies collected approximately 15-20 million dollars from defendants last year and that only 5 agencies make up three-fourths of the market. Shauna has been interviewing bail bond agents and has an upcoming post about competition in the industry. Her work is complemented by an upcoming post from Ruby Renteria, who examines how bail bond companies advertise in holding cells at the jail and share the revenues from these advertisements with the county. Zina Zaia looks at terms in a typical bail contract. Several students also break down the complexities behind booking and release. Erin Callahan has done what I think is the most comprehensive explanation of citation and release in California, a crucial means of diverting people from pretrial custody that has received almost no attention; Marjorie Sheldon talks us through the booking and assessment procedure in the main county jail. Finally, Victoria Perry is writing about the ways in which bail is not the only financial impediment to release: in Santa Clara County, defendants must pay for drug tests, home monitoring, and other things that are prerequisites for non-custodial sentences (or some forms of pretrial release). If they can’t pay, they can’t be released. And I haven’t even mentioned Carlos Barba’s work on the particular risks that domestic violence presents in pretrial decisions.

There are many more examples. Please poke around the blog and leave your feedback, and note that we publish new articles every weekday.

I don’t mean to suggest that there is nothing to learn from the federal system. Indeed, the federal system’s pretrial release is, in many ways, a model in that it requires judges to use the least restrictive means to ensure someone’s appearance at future court dates. That said, I think there is an equal or greater amount to be learned from studying state and local systems. Many more people are affected by those systems, but far fewer sets of eyes are examining them.

Author: W. David Ball

W. David Ball is an Associate Professor at Santa Clara School of Law. He writes and teaches primarily in the fields of criminal law and criminal procedure, with a special focus on sentencing and corrections. He also serves as the Co-Chair of the Corrections Committee of the American Bar Association.

8 thoughts on “Think and Act Locally When It Comes to Criminal Justice”

  1. Wonderful!!! I doubt if many/any counties have the funding to do this much-needed research to see what is working, given that everything got cut to shreds in the Great Recession. It still surprises me how little anyone in the press talks about it. They closed a bunch of courthouses here in LA, so people have to drive *even farther.*

    I have a longish story about how my friend got arrested and what an interesting (and painful) psychological experience it was for *me,* who was not even arrested. Got to run now though. Didn't somebody famous say something about how everybody ought to try getting arrested at least once, so that they would see what went on? I forget who. Maybe one of those nice prison reformer Nixonites. (There was at *least* one. Nolan?)

    1. Thanks so much for your kind comment.

      Part of the reason I like teaching classes like this is precisely because there is so little funding to do it otherwise. My students get valuable real-world experience on an issue where their ideas and research actually matter, and the public gets to use that research. It's a win-win. I always pitch these classes as a kind of informal think tank for the public good.

      I also agree about the arrest issue: there is so much to be learned from reality. At the beginning of the semester I was reluctant to even schedule court-watching. I didn't think it would be "legal" enough. It has turned out to be about the most instructive thing in the entire class, opening the students' eyes as well as my own. In some ways it has shown us just how messed up the system is, which means there aren't any neat and tidy policy solutions. At the same time, it has inspired a lot of them to begin the long slog towards reform.

  2. I spent a few too many days in the Sierra Blanca lock-up (of Willie Nelson fame). I got popped at the bogus "border" on I-10, 80 miles from the nearest crossing, but technically within 25 miles of the Big Bend, so allowable with post-9/11 rules. For gout-ointment (THC-based, legally acquired in Denver, but those doggies sniffed it right out). They make most of their money before SXSW and South Padre Island spring break, giving their dogs a little nod to "point" at any van, or any car with a guitar in the back seat, or any man with long-ish hair, or any car with four young men in it — basically, if the guard thinks there may be a little weed inside, the dog will acknowledge the guard's signal. It's a way for tax-o-phobic West Texas to generate some revenue for its blighted economy from out-of-staters. Texas plates typically get waved through, and any drug-dealer or migrant-worker-smuggler takes other roads, since everyone in Texas knows about the fake border. It's a scam, a shake-down, and the only way those yahoos can make a single cent for social services they'll never provide.

    I was hoping to throw my bail by the end of the afternoon, or at least the next day. But the magistrate had "gone fishing for a few days". Straight out of Mayberry RFD. Yes, there were three bail bond companies who had posted their numbers in all the holding tanks. On my fourth day I finally walked with a bail bondswoman down to the only ATM in town and turned over her 15 percent of my $2500 bail. It got me released, only to have them demand money for my car, then money for my dog (whom they left chained outdoors for four days, and was nearly dead). Then $5K for the standard deal with a local lawyer (plus airfare and hotel and rental car from Boston), $750 fine, and $250 court fees. So for about $8-$10K, I purchased middle-class justice.

    Meanwhile, everyone in the holding tank over those four days was Latino or Black, and poor. All the white guys got their names called to go meet the bail bondsmen. The crime of everyone else was not being able to post bail or pay court fees and fines. Let alone hire a lawyer. '

    When the judge at the arraignment asked me my most recent education, and I said Harvard School Of Public Health, the court reporter asked me to repeat myself, then the judge laughed, and said "we don't get no Harvard boys round here — dem fancy degrees din do shit for you 'round dem dawgs, did dey?" Everyone had a good jolly laugh at that. As I gave them a cheque for $1000 and skated.

    Meanwhile, 90 percent of the courtroom was remanded to custody for not having the court fees handy.

    1. See, this is why a lot of Mark's very cogent analyses go right over my head. I just don't care about the drug war. Enough already. End this. I am so sorry that happened to you… and even sorrier that it is still being done to others. Where the f*ck is the f*cking cavalry? Oh, but wait… the feds aren't going to come are they?

      And I'm not even saying he's wrong. We probably will get more car accidents and maybe even a few more addicts. (Whether the increase will be noticeable, I can't say.)

      But we risk losing something so much more important … that tiny shred of faith in our society that we still have. Who are we, really? And is this who we want to be?

      1. Well, you're going to suspect I'm being disingenuous, but I swear I emerged from those rather frightening four days with a firm conviction that every middle class white person should spend a few days in a southern lock-up.

        I wasn't raped or beaten (evidently rape mostly transpires at the big houses, among lifers)…although when I noticed every single cot had a jar of Vaseline and a prison issue razor with all the plastic casing whittled away, I did feel my sphincter clench involuntarily. But I was forced to stand at meals for two days — the 23 others in Tanque F positioned themselves as to deny me a seat, and I had to spend the first two nights on the floor, because the 24th bunk was in use as the shelf for the largest and toughest guys. They actually serve hard tack and gruel. And at lunch, when they serve you three appalling slim jim thingies, you are expected to turn over one of yours to the big guys.

        I got in trouble the second day's lunch — I could read the handwritten tanque rules on the wall in Spanish, I spend a fair bit of time in Mexico, and my Spanish is good. It said don't use the bathrooms during meals. A) I presumed that meant don't take a shit; B) I presumed once everyone was done, it was fair game. So I took a piss while there were still empty plates on the table. Well damn if that didn't get me shoved against a wall and screamed at. then finally on the third night there was a televised prizefight, and I follow boxing, closely, and I predicted the underdog Mexican challenger would beat the American champ, and I sorta predicted how the fight ougtta go down, with the Mexican wearing him down and winning in the 9th or 10th. Sure as shit, Mexican knock-out in the 10th, and all of a sudden, I have a bunk, I have a seat at the dining table, people are giving me the last three puffs of their cigarettes, I'm one of the boys. But that was pure dumb luck. And I swear, the two emaciated grizzled white-haired old black elder statesmen of the tanque? They've probably been there since 1994, for kiting a cheque.

        But it's something every privileged white boy should see for himself. You'll emerge well-chastened, and well aware that freedom isn't purple mountains' majesty and fruiten plains and some sort of Libertarian gated-community gestalt, for poor people, but closer to those Orozco and Rivera and Siquieros murals in Mexico, a daily struggle to break the chains America loves to shackle people with. Freedom's an elusive motherfucker for the poor.

  3. This is a very important point that few people understanding, including many people who consider themselves criminal justice reform advocates.

    I wish more people would take advantage of the right to watch trials. Television has miseducated the masses on what courtrooms, lawyers, judges, witnesses, suspects etc. are really like, and few people take advantage of the free opportunity to better understand how a crucial institution in their society works.

    1. So does this mean that when we see a news story about some courtroom behavior that makes everyone ask "How did the judge/bailiff/whoever possibly imagine that was an OK thing to do?" it's not so much that the behavior is unusual as that it seldom gets reported?

      1. There are no cameras in low-level courts for the same reason there aren't any in slaughterhouses. At least, that's what I'd like to think. I suppose Fox would have a field day with COURTS. But to watch it as it occurs is one of the most depressing (and occasionally uplifting) experiences I've ever had. Where is the Hogarth of our day, who will sit in a courtroom and draw the misery? Where is the judge who will give that artist easel space?

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