Tag: Alameda County

Ending the Bail System

On April 13, 2017

In Black Lives Matter, Criminal Justice, Justice Reform, Politics and Elections, Race Discrimination

This week, California is taking a momentous step forward. The State Senate, supported by the Assembly, is moving to end bail as we know it. For as long as I have been a lawyer, “making bail” has been a requirement in our criminal justice system. The rule says you are “innocent until proven guilty.” Making bail is the first step that undermines the rule. In our system of justice, once you are arrested, you must prove your innocence. That requires money, starting with bail money.

Where Did It Come From?

The United States has 5 percent of the world’s population but 25% of the world’s prisoners. California led the way to mass incarceration when we approved the 3-strikes initiative in 1994. The right to bail comes from English law. It was incorporated into our Constitution in the Eighth Amendment. Today, a coalition of civil rights organizations supported by dozens of advocacy organizations has taken a huge step to repair the damage of racist failed policies. Thanks to Professor Michelle Alexander, we know that there were more African-American men in prison, jail, on probation or parole in 2013 than were enslaved in 1850.

Almost a dozen legislators, including Assembly District 18 representative Rob Bonta are pushing forward with bail reform. There are two measures being pushed through the State Assembly. Bail reform – SB 10 and AB42. Passage is not guaranteed. Bail reform failed in the legislature in 3 prior attempts. SB10 creates a pretrial services agency in each county and a hearing process for anyone who cannot immediately be released on their own recognizance.

For the first time, the judge deciding whether to release an individual must consider the presumption of innocence along with other factors.

We Have A Bail Problem

The current system allows a person’s wealth rather than their guilt or innocence to determine whether they will remain in jail until the case is over. Indeed, in California, the average bail amount is $50,000. This is five times higher than the rest of the United States. Thousands held in county jails across the state have not been convicted of a crime. They may in fact not have committed any crime. Many people arrested spend up to 5 days in jail even when there is not enough evidence to charge them.

Bail is historically and often used to coerce guilty pleas. Prosecutors often ask for a high bail and judges grant the request to coerce the person to plead guilty. A 2017 study by Human Rights Watch found that between 2011-2015, 1,451,441 people were arrested and jailed for felonies. Of that number, almost 500,000 were eventually found not guilty, their cases were dismissed, or the prosecutor never filed charges.

Alameda County Has A Bail Problem

In 2014-2015, Alameda County spent close to $15,000,000 to incarcerate people whose cases were either dismissed or never filed. Many innocent people had cases filed against them, but the case was dismissed or they were acquitted after spending weeks or months in jail. It is estimated that more than 85% of the people in jail in Alameda County are pretrial detainees – they have not been convicted or pled guilty. Ninety-one percent (91%) of those who pled guilty to a felony were released shortly after they took the plea deal. Most of the time, there is no legal right to sue for wrongful imprisonment, even if you were innocent.

When a person cannot make bail, it may cause loss of employment, income and/or housing. Our current system causes traumatic family disruption. On the one hand, when a person is held in jail, the whole family suffers shame and fear. To bail someone out may require multiple family members to take on crushing debt. The consequences of pretrial detention affect people of color, particularly Black people, and poor people far more often than white people. The stories of people losing their jobs or their homes because they went to jail and couldn’t make bail are far too common.

SB10 and AB42 are important steps in addressing the terrible consequences of mass incarceration. They both need our support to pass this time. The question is do we really believe that someone is innocent until proven guilty, and if so, does that matter? Please sign the Courage Campaign’s online petition!

Hypocrisy in Alameda County

By pypriceesq

On February 9, 2017

In Criminal Justice, Humanity, Justice Reform, Police Misconduct

Credit: Alameda County Sheriff’s Dept.

Former Livermore Police Officer Daniel Black is on trial. He is one of dozens of Bay Area police officers who allegedly abused their power to sexually exploit my former client, Jasmine. Black admits that he had multiple sexual encounters with 19-year-old Jasmine. He claims the sex was part of “a private relationship” with Jasmine. Black’s alleged conduct took place in April 2016 while the Oakland Police Department was trying to cover up Jasmine’s sexual exploitation by OPD officers.

In September 2015 OPD Officer Brendan O’Brien committed suicide and left a note “naming names.” O’Brien’s suicide exposed the commercial sex trafficking of young women by law enforcement throughout the Bay Area. Daniel Black was not one of the men named in the note. Apparently he was not aware of the ongoing OPD cover-up and investigation. He is accused of going to Richmond to get Jasmine in April 2016, and using food and alcohol to compensate her for having sex with him.

Felonies and Misdemeanors

Penal Code Section 266i (a)(2) provides that any person who “[b]y promises, threats, violence, or by any device or scheme, causes, induces, persuades, or encourages another person to become a prostitute” is guilty of pandering. Dan Black’s sexual exploitation of 19-year-old Jasmine was “pandering” her under the law. The fact that someone has previously engaged in prostitution is not a defense to the charge. Penal Code Section 266 is a felony.

Dan Black is on trial for five (5) misdemeanors. He is charged with engaging in prostitution, engaging in lewd conduct in public and giving alcohol to a minor (under age 21). Misdemeanor charges carry far less severe punishment than felony charges. Misdemeanor convictions can include unsupervised probation or no jail time. Felonies usually include some type of prison or jail time and significant restrictions of your constitutional rights, including the right to vote. Dan Black is not charged with any felonies. He is not charged under California’s human trafficking law. This is very strange.

Proposition 35 – Californians Against Sexual Exploitation Act

In 2012, California voters passed Proposition 35. The law passed by a huge margin. 81.3% of voters said yes. Prop. 35 is intended to fight commercial sex trafficking, particularly as it affects minors. It changed the law to include more crimes in the definition of human trafficking, increase penalties for trafficking, provide more services for victims, change evidence rules in trafficking cases, require law enforcement training in human trafficking, and expand requirements for sex offenders. As a result of the voters, Prop. 35 includes a violation of Penal Code Section 266.

Alameda County District Attorney Nancy O’Malley was a major supporter of Prop. 35. Yet, none of the Bay Area police officers who sexually exploited Jasmine face charges under Prop. 35. Not a single one. This is the worst sex scandal to ever rock Bay area police departments. This scandal cost Oakland 3 police chiefs in nine days. These crimes will cost the City of Oakland and the County of Alameda millions of dollars. Yet, none of the police officers charged in Alameda County are facing sex trafficking charges. Not a single one. It is as if Prop. 35 does not even exist.

Prosecutorial Discretion and Overcharging Crimes

What makes this situation even more bizarre is that prosecutors routinely overcharge defendants. The practice of overcharging has become one of the hallmarks of our criminal justice system – a way to ensure that the system can actually function. The only way the Courts can handle the number of cases charged by prosecutors is by getting plea bargains. If every criminal defendant insisted on going to trial and refused to “take a deal”, the system would totally collapse.

In his book Why Innocent People Plead Guilty, Jed S. Rakoff writes that “our criminal justice system is almost exclusively a system of plea bargaining, negotiated behind closed doors and with no judicial oversight. The outcome is very largely determined by the prosecutor alone.”

There are no written regulations controlling the prosecutor’s exercise of his charging power in California or anywhere else in the United States. There is no established or meaningful process for appealing the prosecutor’s exercise of his charging power. The result is that an estimated 95% of all criminal cases end with a plea bargain.

Credit: New York Review of Books

Jed Rakoff cites the case of Brian Banks from Long Beach, California. Banks, who had been a high school football star with a scholarship to USC at the time of his arrest, served five years in prison for rape and kidnapping charges. Brian did not actually commit the crime.

Brian Banks accepted a plea bargain under the advisement of his original lawyer. He was freed in 2012 through the efforts of the Innocence Project.

Comparing Brian Banks’ case to Daniel Black’s case may seem like comparing apples to oranges. But the real difference is that Brian Banks was charged and convicted of a crime he did not commit, while Dan Black is not charged at all with crimes he admits he committed. Is this a case of “white privilege” or “badge privilege?” Something is definitely wrong with this picture. The artist in Alameda County is our District Attorney.