The Sham and Shame of Privatized Detention

Some laws are oppressive to low-income people facing criminal prosecution. An example is California Penal Code section 1203.016. This law, effective since January 1, 2015, enables California’s fifty-eight counties to deliver poor people to corporations that then profit from the human misery of these people, men and women who are charged with crimes and stuck in jail. Low-income people cannot arrange or afford to pay a nonrefundable bail bond. But those with resources to post the value of the bond get their money back when their cases end, whether there’s a conviction or not. Something stinks. The cash bail group remains free to go to work or school until the end of their cases. Can you see the difference?

How Section 1203.016 Came to Be: First There Was Brown v. Plata

The genesis of this bad law was a 2011 landmark US Supreme Court decision. In Brown v. Plata, the majority decision meant to reverse harshly inadequate conditions in California’s prisons, including inadequate medical care and overcrowding. Justice Kennedy issued an order requiring California to reduce its overcrowded prisons according to a timetable.

The Plata court ordered California to reduce its prison population to 137.5 percent of the original design capacity of its thirty-three adult prisons—thus reducing its prison population by thirty-three thousand inmates by June 2013. The decision evolved into legislation designed to implement the court’s order. California’s historic realignment process, which continues today, is embodied in Penal Code section 1203.016.

The Plata Loophole: The Shame

A careful reading of the Plata decision finds no mention of California’s overcrowded jails. Arrestees who cannot afford bail during the resolution of their cases rot in jails around the country, away from family, jobs, and education. A conviction for a misdemeanor resulting in a sentence of up to a year is served in a county prison. A conviction on a felony charge is served in a state prison (where the minimum sentence is one year of imprisonment). This oversight gave the state a way to reduce the prison population, direct inmates to jails, and eventually make money on the backs of the poor.

Because the Plata decision is directed at the state’s prison system and not county jails, county jails have become the human repositories for the overloaded prison population. Therein lies a loophole in the decision—county jails subsequently became a financial vacuum resulting in the exploitation of low-income people arrested for a crime. And it is upon the backs of these people who can least afford it that counties can save money and reduce overhead. This is like resolving the problem of a two-story building with a flooded second floor by directing the deluge downstairs and telling those below to deal with it. I’ll connect the dots at the end.

And Then Came AB 109

The mandate of the Plata decision required California to undergo a dramatic transformation of its prison system. Signed by Governor Jerry Brown, the Public Safety Realignment Act of 2011 was enacted with the goal of dramatically reducing the state prison population (but not that of the jails). Known as Assembly Bill (AB) 109, the act provides a dedicated and permanent revenue stream to the counties through vehicle license fees and a portion of the state sales tax—California residents’ tax dollars.

As I wrote in my post AB 109—Where Are You Now?, “To carry out the realignment’s transfer of offender supervision from the state to the county level, California is distributing $4.4 billion to the counties in 2016–2017.”

And Then Came Penal Code Section 1203.016—Bad Law Paves the Road to Privatization: A Sham

According to a Harvard Law School Criminal Justice Policy Program report, “California Pretrial Reform: The Next Step in Realignment,” published in October 2017, “in 2015, 63% of jail beds in California were filled by [nearly 47,000] people awaiting either trial or sentencing.” The pretrial expense to taxpayers is costly.

• Statewide estimated pretrial detention costs, per diem, are $113.87 per day per defendant and vary by county. In Santa Clara County, it costs $159 and in Los Angeles County $177 per day to detain a pretrial defendant.

This excessive pretrial detention process is the result of the number of bail-eligible people detained in jails. The Harvard report states it clearly:

These costs add up. On a nationwide level, pretrial incarceration costs an estimated $14 billion each year. A Human Rights Watch analysis of data from the Sacramento County Sheriff’s Department found that “the cost of detaining people who were bail-eligible but who did not pay bail was over $44.3 million from 2014–2015.”

The report highlights one realignment procedure that has changed the criminal justice system in California by relying upon overcrowded jails to absorb certain low-level offenders from the prison system to meet the reduction in the state’s prison populations as required by Plata.

Here Comes Privatization: Another Shame

Realignment gives counties broad discretion for designing and implementing effective pretrial release programs. Some counties bring in third-party electronic monitoring companies to keep track of inmates hooked to GPS systems and the like. This law shifts the responsibility of paying the per diem cost of restrictive monitoring associated with home detention while a person awaits trial or is serving a posttrial misdemeanor conviction to the defendant.

Penal Code section 1203.016(g) reads: “The [county] board of supervisors may prescribe a program administrative fee to be paid by each home detention participant that shall be determined according to his or her ability to pay.” I refer to this as the bad law throughout.

While the law gives lip service to not excluding those who cannot afford to participate in the program, when electronic monitoring of people is approved by a judge, the lure of freedom is strong. When you’re locked up, all you think and breathe is getting out. The rub here is that the surging cost of mass incarceration under which counties operate is alleviated, in part, by offsetting administrative costs of incarceration through a third-party corporation. Corporations are not people, and they don’t have much human empathy, except to shareholders. They are legal business entities with voracious profit appetites. Corporations won’t provide monitoring services at no cost, meaning that those with low incomes will be locked up because they are poor.

Here’s the attack on the poor with the bad law: section 1203.016(b)(4) provides that “if the person willfully fails to pay fees to the provider of the electronic home detection services . . . return to custody may result.” Corporations have overhead to make, you know, and stragglers will be repossessed.

I argue that there should be no minimum daily rate charged for monitoring. I further argue that the county, not the participant in a monitoring program, should pay for the third-party corporation’s cost of providing its services since the county would incur a much higher per diem cost, per person, in a jail cell. How about this alternative: have the court determine the ability to pay for third-party monitoring and have the county pay the sliding-scale fee for the service on behalf of the participant. This policy will equate to far less than the figures cited above for the per diem cost to hold a person in a jail. This is a win-win-win formula for the defendant, the county, and the third-party corporation.

The law empowers corporations to step into the shoes of the county to monitor and hold accountable pretrial and posttrial defendants through their fees paid to the corporation—no longer the per diem cost payable by the county but rather by indigent defendants! This practice of charging individuals for a criminal justice alternative, codified in a bad law, takes on a life of its own and becomes increasingly normalized and destructive. Even with a daily fee of only $10 (after payment of a $125 application fee), an indigent person is going to rack up a bill beyond his or her ability to pay—cases languish through the courts for months. If charges are dismissed, the corporations pursue dollars owed them; the authority to do so is within the bad law. Converting the public cost of maintaining county jails into personal obligations of poor people is obscene.

A Case in Point—Reem v. Hennessy: A Shame and Sham

There’s a case going on right now that highlights the insidious nature of pretrial detention and how the system can punish the poor. In Reem v. Hennessy (2017), the federal court for the Northern District of California sought by way of an emergency habeas corpus a bail bond reduction for pending state criminal charges by a federal court. Reem sought a reduction in his bail so he could afford to be released. He asked for relief from the federal court because the California Court of Appeals and the California Supreme Court both rejected his habeas corpus writ through the state system. Of note is the federal order the California Supreme Court, in curious candor, puts in its order granting the writ that “The Attorney General filed a statement . . . acknowledging that Reem’s detention had no legal basis.”

That statement speaks volumes: What’s the constitutional basis for holding a person in detention when there’s no legal basis? How can a supreme court not act upon the admission by a prosecutor that there was no case to be made? And the greatest cause for alarm is the federal court’s citing further admissions of prosecutorial misconduct and showing a biased bent on the part of the court: “He [Reem] is arguing that he is entitled to it [reduced bail] as a matter of constitutional law.”

A hearing for the Reem case has been set for December 20, 2017. I will update you about the case in future posts.

Summation

The topic at hand is huge. Preincarceration and postconviction detentions are being postured for major change. My other posts related to the topic include Bail, AB 109—Where Are You Now?, and Implementing Proposition 57.

Privatizing the criminal justice system by converting public costs into private obligations has the biggest impact on the poor and people of color. What a shame. The law that empowers jails to absorb the prison overpopulation hemorrhage, required by the Plata order, to reduce prison populations and not those of jails, is disproportionately involved in the criminal justice system.

It’s a sham that the loophole in Plata’s scope of good intentions resulted in the financial weaponization of the bad law. This all leads to an uncomfortable shot at constitutional rights and bad fee-based justice policy that causes hurt and harm. The bad law enables counties to deliver poor people to corporations, which then profit from the human misery of people thrown into financial hell while stuck in jail.

Your comments are always welcome.

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