BAIL ISSUES IN YOUR SAN DIEGO CRIMINAL CASE

One of the first things that comes to the mind of most Americans when thinking about our criminal justice system is the notion that we are "innocent until proven guilty."  For those who have had contact with our criminal justice system, the feeling is usually quite the opposite.  Upon suspicion of a crime, and at the discretion of police officers, we can be arrested and held in custody with almost no oversight.  Next, the prosecuting agency will decide whether to file charges, and can file charges with broad discretion, without having to immediately make any showing of evidence.  Pretrial detention can last a very, very long time.  Very few cases will get to trial in less than two months, and in felony cases even longer.  Investigation, motions, and case preparation can drag the process out more, and people may be facing criminal charges for months and even years.  Currently, many of the accused are incarcerated until they are either proven guilty or can post bail.  Bail can be posted in its full amount, and upon conclusion of the case, the court will return the full amount.  Unfortunately, bail amounts are usually too high (San Diego Bail Schedule), and defendants and their families will require the services of a bail bondsman.  Bail bondsmen work with a surety company that will post the full amount of your bail with the court in exchange for a premium (usually 7%-10% of the total bond amount), even offering payment plans, making bail possible for more people.  The catch: you do not get the premium back when the case is over; that fee is what the bail bondsman earns by posting the full amount and getting you out of jail.

PURPOSE OF BAIL
There is only ONE constitutionally justified reason for bail: securing the defendant's return to court.  That's it.  In California, however, the government gave itself an additional justification: protecting the public safety.  Accordingly, when a judge is determining your bail amount at arraignment or bail review, they consider two things: (1) your likelihood of not returning to court ("flight risk"), and (2) whether you pose a danger to the community.  Back in the infancy of our criminal justice system and bail process, evading the powers of the court was not very difficult.  Courts did not have photographs of defendants, their fingerprints, and citizens were not equipped with photo ID.  Therefore, a way to ensure someone returned was to make them leave money as collateral, to be returned when they returned.  Today, in the age of credit cards, smart phones, social media, facial recognition technology, and the like, being a "flight risk" would require extreme resources - the kind of extreme resources that would also make posting bail easy for such a person.  In other words, cash bail does not ensure return to court.  Instead, it serves to lock up poor people who have not been proven guilty, and provide relief from that injustice to those with substantial means.  The purpose of bail is greatly outdated, but we still must argue within that framework for the lowest bail possible.  At arraignment or bail review, your San Diego Criminal Defense Lawyer will show that you are not a flight risk by pointing out a lack of history of failures to appear, your timely presence in court for that proceeding, and your commitment to your defense by hiring an attorney.  Defendants charged with nonviolent offenses and/or nonviolent pasts are more likely to receive bail reductions or to be released on their own recognizance.

BAIL REFORM
California is known in many ways as a progressive state, and lawmakers and appellate courts have recently begun to reform the cash bail process in California.  Judges must now consider less restrictive means (less restrictive than jail) to achieve the bail objectives.  Still, this only permits judges to deviate from a predetermined bail schedule.  Reformers still see cash bail as a major injustice in that it disproportionately affects the poor, and places a tremendous burden (punishment, really) on people who have not been proven guilty of any wrongdoing.

BAIL AND FALSE CONVICTIONS
Because incarceration is so difficult, it impacts a defendant's rights to a just outcome in their case in many ways.  For example, an innocent person may be presented with the following scenario:
     Isaac is arrested for grand theft, after being mistaken for another person.  He is held on
     $20,000 bail.  If he doesn't get out of jail by the next day, he will lose his job, and his family will not
     be able to pay rent.  Having done nothing wrong, he must either (a) come up with money to bail out,
     (b) stay in jail for months until his trial, or (c) take a plea deal that lets him go home on probation with
     a felony conviction.
Imagine that?  The best option for Innocent Isaac might be to plead guilty to a crime he did not commit.  People plead guilty and rush their defense because they are incarcerated every day.  Defense lawyers sometimes need more time to do investigation and motions, but have to compete with the fact that the client is in custody during that time.  This is not how we should treat someone who is supposed to be presumed innocent.  Unfortunately, many DAs and judges prefer this injustice because it results in quicker disposition of cases - even if at the risk of justice.

MOTIONS TO REDUCE BAIL - MOTIONS FOR OWN RECOGNIZANCE RELEASE
Bail is typically set at the time of arrest, and then addressed again at arraignment.  If you or your lawyer believe that the bail set at arraignment was too high, a bail review can be set two or more days later.  Bail can also be addressed at later stages in the case with two days' notice.  At a bail review, your criminal defense lawyer will have to make a showing that you are not a flight risk or a danger to the community.  Showing that you have strong ties to the community, and presenting other mitigation can get bail reduced or even result in the court agreeing to release you without having to post any bail at all.  Your lawyer will know which factors, changed circumstances, and other reasons to persuade your judge.

PC 1275.1 HOLDS - SOURCE OF BAIL FUNDS
An issue that sometimes comes up in criminal cases is the source of bail funds.  Defendants charged with money laundering, embezzlement, high-level drug trafficking, and the like may have to show the court that the money used for bail came from legitimate sources.

IF YOU OR A LOVED ONE IS INCARCERATED, HAS A WARRANT, OR HAS AN ARRAIGNMENT DATE COMING UP IN SAN DIEGO, YOU NEED A PASSIONATE, DEDICATED CRIMINAL LAWYER ON YOUR SIDE TO FIGHT TO KEEP YOU OUT OF CUSTODY, AND IF NECESSARY, COORDINATE WITH YOUR BAIL BONDSMAN TO KEEP YOU OUT OF JAIL SO THAT YOU CAN FIGHT YOUR CASE THE RIGHT WAY.  CALL NOW FOR A FREE CONSULTATION  619-550-4422.

by Nicholas Loncar

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