Tuesday, May 28, 2013

Government: is it eliminating private business?

Unfortunately a fact of life is that government can always out-do private business because the government has the benefit of taxpayer monies.  Government can step in the way of a private industry that has centuries of success and efficiency.  Too many times what was originally meant to become a program that would ultimately save taxpayer dollars becomes a huge bureaucracy that is unwieldy and inefficient.  And the term “profit-making industry,” becomes something that is wrong.

Take the taxpayer-funded pretrial services system.

Originally established to help the poor, non-violent offender seek release from jail because they could not afford financial release, today such programs are competing with the private commercial bail industry by releasing hundreds of defendants each week, many of whom are charged with violent and dangerous offenses with criminal histories and who are not indigent.  Such programs have grown in size and scope to the point that they are directly competing for the same clients as the private sector at the taxpayers’ expense. 

Like so many government programs, taxpayer-funded pretrial services programs tend to proliferate into something that had a finite and noble purpose in the beginning but today have lost their focus.  If someone is arrested for an alleged crime and they have the resources to post a bond for their release, why would we use taxpayer funds to release them instead?  While the truly poor or indigent defendant who committed a non-violent offense languishes in jail.  Who could benefit from government assistance the most?  Today it seems like an affront to someone who has been accused of a crime to actually feel any kind of inconvenience for their release from jail while the victims of the alleged crimes are given little to no assistance.  And a for-profit industry in the criminal justice system, which is highly regulated and licensed, has become maligned and is told it is an insult for taking a small non-refundable premium to secure the release of someone from jail without using any taxpayer funds.

There becomes a problem with credibility when proponents are pushing a government release program from jail for everyone regardless of whether an individual can afford to pay for their own release.

If non-violent, low-risk offenders can be given a notice to appear, be released on their own recognizance, or released under a taxpayer-funded supervision program, the financial burden to the taxpayer is decreased by saving dollars for daily jail beds.  However, any supervision program must be efficient and effective.  But advocating for the creation or enhancement of taxpayer-funded programs for the release of risker and more dangerous offenders, often using fear and conjecture with elected officials, is fundamentally wrong. 

Some people need some type of intervention to get them back on the right path.  Taxpayer-funded programs can monitor certain types of interventions such as drug testing and adherence to anger management classes etc.  But if you are a defendant with a serious drug habit or someone who has a lengthy criminal history, how effective are these interventions at the end of the day in making sure you show up for court and refrain from future criminal activity.  They aren’t. 

The private commercial bail industry on the other hand must guarantee that you appear at all required court hearings or the bail agent is financially liable for the full amount of the bond – not just the small refundable premium earned.  No other release system has such financial responsibility.  Significant revenue is also generated for counties and states for every bail bond written in the form of licensing fees, losses and premium taxes.  But such accountability means little to those who seek more of your tax dollars. 

Proponents of taxpayer-funded pretrial services systems are now seeking stories on pretrial injustice to further their cause.  They want stories on how the current bail system in America has failed – failed for people arrested for a crime in the criminal justice system.  Stories about a time when money caused the unnecessary incarceration of an individual . . . when a simple risk assessment or preventative detention would have prevented future crime . . . when jails became overcrowded due to unnecessary pretrial incarceration . . . any example of policies or procedures that lead to unsafe, unfair or inefficient pretrial policies.

Pictures of defendants are being used as marketing strategies for more taxpayer dollars to be used to create and grow taxpayer-funded pretrial services programs.  Defendants don’t need to “languish” in jail if their offense and criminal history is one that a judge believes will warrant release on their own recognizance, or a promise to appear at all court hearings.  Judges don’t have to order release under a taxpayer-funded program for such defendants, particularly when supervision is minimal and the authority to find and bring someone back to jail for non-appearance is non-existent.  If they want a guarantee that defendant will appear for court based on their offense and criminal history, they know they can rely on the private commercial bail industry. 

Government vs. private industry:  At the end of the day the question we should all ask ourselves when using limited taxpayer dollars in the criminal justice system is this: do we want a private entity, a small business, individual bail agents who are financially responsible for guaranteeing defendants attend all required court hearings until disposition of their case, to continue to assume this critical role at no taxpayer expense . . . or do we want to put that responsibility on government and the taxpayers?

You decide. 

Thursday, May 16, 2013

Who Should be Next? Orange County’s Home Confinement Debacle Continues to Force Key Resignations

Garnett Ahern, former supervisor of the Orange County Jail’s Home Confinement program, will be retiring officially May 25, 2013 even though disciplinary action is still pending against her and other employees for not informing the court of the multitude of curfew violations one defendant racked up while being monitored by the program – he is now charged with the alleged murder of Alex Zaldivar who was scheduled to testify against him for a previous burglary and home invasion offense.

Ms. Ahern was found by two internal Orange County reports to have violated policy and procedures regarding the operation of the Home Confinement program and co-workers stated she had pressured them to avoid reporting to the court defendants’ violations of program conditions. 

Specifically one report stated, “At best, Ms. Ahern created a level of acceptance in the eyes of her subordinate staff regarding the allowance of offenders to violate . . . at worst she may have even encouraged it.”  Ahern denied the accusations.

Both internal reports found glaring errors in the monitoring of defendants on home confinement to include improperly completed audits and compliance with program conditions.

Many are pointing fingers as to who is to blame.

Last week Commissioner Fred Brummer and Alex Zaldivar’s dad Rafael, both called for Deputy County Administrator and Public Safety Director Linda Weinberg to be fired.

According to one of the internal reports, the jail’s PIO called Weinberg on September 11 or 12, 2012 shortly after Alex Zaldivar’s death and amid sudden media interest regarding the arrest of Bessman Okafor and what appeared to be an ongoing investigation.  Okafor was supposed to be supervised by Home Confinement staff but it was later learned that he had 109 curfew violations that could have had his pretrial release revoked, but a judge was never informed of the curfew violations.  On the night Alex Zaldivar was murdered and two others seriously injured, Okafor was found to have had a lengthy curfew violation that later corresponded to the time of the murder.

According to statements by the jail’s PIO, Weinberg suggested the PIO contact OPD, who had launched a homicide taskforce and were looking at Okafor as a person of interest, regarding the release of any records on Okafor that might impede their investigation. 

Weinberg, per the internal report, asked for no detail or information regarding the substance of the media requests or why they were being made regarding Okafor or of any issues she should be made aware of.  Despite the ongoing media inquiries, Weinberg stated she was not made aware of any issues regarding the Home Confinement program until earlier this year. 

Perhaps she should have asked.

Commissioner Brummer agrees.  He said in an interview with Channel 9 that, “bells should have gone off,” when the jail’s PIO initially called Weinberg regarding the media interest and OPD investigation.

In speaking of Weinberg, Brummer stated, "That person has to be a good manager. Has to ask the questions, listen to concerns; has to make sure the manager of the corrections division is managing."

Okafor's Home Confinement case manager, Meg Hughes, stated in internal reports that, "We were told we were going to 'work with people' and 'keep our numbers' up so violations for drugs or 'stuff like that' we didn't violate them."

Not holding individuals accountable for their behavior never works – not in the criminal justice system or in life in general.  Particularly when millions of taxpayer dollars are being used to fund a supervision program for defendants charged with dangerous and violent offenses such as Okafor.  Individuals charged with monitoring such defendants must also be held accountable for doing their jobs effectively just as the private commercial bail industry is accountable for guaranteeing a defendant's appearance in court.
Too many were found not to be doing so in this case and tragically Alex Zaldivar was murdered.

Leadership starts at the top.  Already the Chief of Corrections and his Deputy have submitted their resignations as well as Ms. Ahern who managed the program.  All have done so immense intense scrutiny of the Home Confinement program and before any formal termination took place.  Disciplinary action will continue with other staff affiliated with the case of Mr. Okafor. 

County Commissioners are wise to continue to ask for answers from high ranking staff and others regarding the truth and functioning of the Home Confinement program and other taxpayer-funded supervision programs.

As taxpayers, we expect nothing less.

Wednesday, May 1, 2013

The Pretrial Phase in the Criminal Justice System

The pretrial phase of the criminal justice system in America is fortunately very different from other parts of the world, where people are often arrested and improperly detained by law enforcement.  In America however, law enforcement must have probable cause to arrest and detain someone; a reasonable ground for a belief that the accused was guilty of the crime.  The probable cause standard is more important in criminal law because it is used as a basis for searching and arresting people.

When people are arrested, they have several options for release pending the outcome of their case based on state statues and laws and if a judge deems the circumstances warrant a release.   Release on a commercial bail bond is one option a defendant may be granted.  Other options include:
  • Release on recognizance or a promise to appear for court; 
  • Cash bail whereby the defendant puts up the full bond with the court; 
  • Unsecured financial release whereby the defendant is released on a promise to appear for court and if they don’t, they must pay the full bond to the court; 
  • Cash deposit bail whereby the defendant pays a small percentage of the total bond to the court, which is returned for appearance at all required court hearings; and
  • Taxpayer-funded release whereby a defendant is released to be monitored by a pretrial supervision program using tax dollars
A bail bond is an appearance bond; a bail agent is financially responsible for making sure a defendant attends all required court hearings until disposition of their case.  If the defendant fails to appear, the bail agent must pay the court the full amount of the bond.  Such a release system instills personal accountability on the part of the defendant to appear and for others who have pledged collateral for their release.  Bail agents use no taxpayer funds for their services.

Those who promote the elimination of commercial bail continue to try and make the taxpayers believe that our pretrial justice system is broken because defendants must either pay bail or wait behind bars for their court date.  Proponents of taxpayer-funded programs claim they save the taxpayers millions of dollars by securing the release of defendants who otherwise would languish in jail without them.  Money is the sole reason that is causing the unnecessary incarceration of the defendant.  Money is stopping them from returning to their family and jobs.  Money is causing jail overcrowding across the country because defendants can’t afford their release. 

Defendants should just be given an objective and validated risk assessment so that a judge could release defendants on non-monetary release with conditions to prevent further incarceration.  Such assessment would prevent the unsafe, unfair and inefficient pretrial practices that rely on money bail and cause preventative detention.

For non-violent, first-time offenders, that would be a workable solution to keep jail populations in check and to assist defendants to return to their community and hopefully be more productive citizens.  The mantra of proponents of taxpayer-funded release programs is that they provide a vehicle to enforce conditions of release.

But what about the fundamental principle that is being ignored by forcing conditions: defendants, who are innocent until proven guilty, are being forced into programs in order to be released from jail.  It is understandable if GPS or electronic monitoring is ordered as such conditions have a direct effect on public safety if the defendant is monitored properly.  But as we have shown throughout our blog postings, it is not only the non-violent, low-risk offender that is being released and supervised on taxpayer funds. 

And is forcing people to take drug tests or enter substance abuse or mental health treatment while they are still considered innocent of the charge they were arrested on a violation of their constitutional rights?  Do you not think defendants feel pressure to accept these conditions if they want to be released from jail on non-monetary means?  Why are such conditions acceptable to force on people while the condition of financial release is seen as greedy?  Such programs charge for their services along with supervision fees that defendants must pay for.  Why is this financial charge acceptable when the charge for a bail bond is not?

If convicted of a crime, ordering defendants into substance abuse or mental health treatment, anger management, batterers’ intervention programs etc. is the right thing to do if any of the above lead to the crime the defendant was convicted of.  Treatment and intervention will hopefully help these defendants to be contributing members of their community once released from jail or prison.

But too often society has assumed a paternalistic role to force and compel people arrested for a crime into programs before they have reached a trial on their merits or disposition of the merits.  When proponents of taxpayer-funded release systems say that it doesn’t matter if someone is indigent or not or even particularly what crime they are accused of to be eligible for release on taxpayer funds, it begs to question whether society has lost its path of getting back to the fundamentals of what the pretrial stage of the criminal justice system is all about.

While defendants should not have unreasonable bond imposed, nor should they have unreasonable societal conditions imposed. 

Judges have the authority and discretion to release any defendant on their own recognizance; if financial release is a burden and the defendant committed a non-violent crime, release them that way.  Defendants who have the resources to pay for a bail bond will do so usually within 72 hours.  And the bail agent will financially guarantee that the defendant will appear at all required court appearances.  If not, they pay the full amount of the bond to the court.  The taxpayer is not on the financial hook for that defendant.  The fact is: most people who have been arrested and had their liberty taken away will find a way to post a bail bond. 

Taxpayer-funded programs claim that without their services, jails would be overflowing with defendants languishing in jail and taxpayers would pay millions of dollars more than they should to house those defendants.  There are many jails without such programs and they manage to control their jail population through posting of bail bonds and other release mechanisms.  

And then there is discussion about the true cost of housing a defendant.  

Anyone who ever took an economics class understands the difference between a fixed cost and a variable cost.  Fixed costs are those “hard” costs that remain despite the inmate population.  If someone is not in jail on a given day, the power bill still has to be paid.  Upkeep and maintenance still has to occur.  Salaries of employees still have to be paid.  The consumable costs of housing an inmate include such things as food, clothing and healthcare and are usually under $15 per day.  A stark difference from the dollar amount told to taxpayers of up to $150 a day to house a defendant.

Like so many government programs, taxpayer-funded release systems can proliferate if not kept in check.  Something that came into existence in the 1960s as a program with a finite purpose today wants to exponentially expand its original purpose.  Today such programs are directly competing with private industry to supervise career and dangerous defendants using taxpayer funds and disregarding many of the very defendants they were created to help – the indigent, poor, non-violent defendants. 

There is a need for both a taxpayer-funded release system and the commercial bail industry.  The question we should all ask ourselves is this: do we want a private system with centuries of experience, which is comprised of small business owners, which is financially responsible for ensuring the appearance of defendants at court, which uses no taxpayer funds, to continue to be a viable partner in the criminal justice system – or do we want to put that responsibility on government and the taxpayers?