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.

[Cross-posted at The Reality-Based Community]

David Ball

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.