The Royal Family (49 page)

Absolutely. Absolutely. But pretrial detention just points out the difference between rich and poor. And look. If you have x amount of people in the county jail, so the county gets sued by the feds for overcrowding, what’s going to happen? A new jail! The greatest thing in this state used to be the California higher education master plan. Three years ago, the amount we spent on education was for the first time surpassed by the amount spent on prisons. You build a prison, you have to fill it or they close you down . . . If I were a wealthy man, I’d invest in geriatrics. The biggest old-age facilities will be in prisons. The whole concept is fear.
Build a prison and they will come.

I thought for a while, then said: Why not create a state fund to pay for the supervision of poor people who can’t bail? Pay for ankle bracelets or bounty hunters or
something.
That’s got to be cheaper and kinder than letting them sit in jail.

Lemme tell you, said Inouye a little vaguely. This has been tossed around in many jurisdictions as an adjunct to the O.R. And we do have an O.R. Project in San Francisco . . .

Why don’t defendants get O.R.’d more often, aside from the financial incentive to fill prisons?

Well, a judge might hesitate to O.R. a suspect because if he committed any crimes while he was out, the judge’s enemies would have ammunition against him in his next reelection campaign. Moreover, bondsmen sometimes support judges in their election campaigns. —He chuckled and then said: A judge who O.R.s people who’d otherwise be paying bail bondsmen might be less than popular!

Needless to say, the bondsmen express divergent views. Roger Adair, for instance, said: Your idea of a fund sounds nice in principle, but when it came out to the time and money actually needed, I don’t think it would be there.

I knew that Adair was right, because it’s not so popular to spend money on poor people.

And lemme tell you something about the skip rate on O.R., he went on. To be honest with you, they’ve got over ninety-five thousand active bench warrants in Sacramento city and county. Only three hundred and forty-two of those are for people out on bail.
†

That’s why I don’t recommend any kind of O.R. program. What’s more, we bail bondsmen with our own bounty hunters do go out and find our own people at our expense, so we save the taxpayers’ money.

If you extrapolate
that
out, laughed Daro in response, leaning back in the dark at the Inn Justice bar, his white shirt perfect against his white hair and handsome, florid face, well, that means those people never got in trouble again, since the system hasn’t
found
them, right? So they haven’t had an encounter with the law for seven years!
So O.R. works!
he chuckled. That statistic means we should shut down the prison system!

In Sacramento there is no bail commissioner at all, and in San Francisco the sherriff’s office had never heard of round-bespectacled, dark-moustached Commissioner Lam, who on an average day played God thirty-five times, all aside from his job presiding over drug court. I called superior court, where the clerks asked one another in bafflement: Would you know how to reach the bail commissioner? —Finally they referred me to the Office of Citizens’ Complaints, because “they know everything.” But they didn’t. In the end, Daro Inouye helped me interview him at the Inn Justice.

Would you say you’re more on the public defender’s side or the D.A.’s side?

Oh, I think I piss off both sides, he said.

How fair would you say the bail system is in general?

I acknowledge that it’s an unfair system, but I’m not sure that there’s anything better.

And O.R. ? I asked him, because he reviewed all candidates for that avenue to liberty.

My feeling on O.R. ? he said slowly. If you’re a person who has a stake in this, you’re gonna have to come back to the courthouse. The others, they don’t give a crap. They may commit the same offense again, sure. We
case manage
these guys. What else can we do? The fifteen minutes that somebody spends in court is nothing compared to the twenty-four hours he spends in the street. How important can the guy in the black robe be compared to the asshole who keeps chasin’ him in the Tenderloin?

(Failure is a part of the whole cycle, Daro agreed. Otherwise you’re saying, you blew it, that’s it forever, you’re in jail.)

How do you choose who stays and who goes?

I look at the background to see if the person will come back and if he is a particular threat. Has he defaulted before? The first issue is community safety. Then comes the severity of the offense. Finally comes failure to appear. This has nothing to do with has he committed the crime or not, and so I don’t think it gets in the way of presumption of innocence.

When I’d asked Geri Campana how she decided whom to bail, she’d replied: A lot of it is gut feeling. I can pick up the phone and know right away if it’s a good bail or a bad bail. And then a lot of it is the stability of them in the area—how long they work here, how many family members are in my office signing up for them, whether the family’s stable and the defendant has never failed to appear.

So far, this sounded pretty much like Commissioner Lam’s answer. But then I inquired: What’s a bad bail? Somebody who’s going to skip?

Mrs. Campana’s answer went to the heart of the matter:
If we take good collateral, we don’t worry about that.

And so, should the collateral be safe and decent, our bondsman crosses the street, ascends those wide steps of the Hall of Justice, and makes a beeline for Room 201 to submit the double-stubbed bond papers (which come preprinted in varying ceiling amounts, just like travelers’ checks) through a circular opening, receiving a receipt in exchange, which at least is more than can be said for many other transactions involving criminality. Next, the bondsman must follow the arrow for the
JAIL ELEVATOR.
Ascend to the place of confinement, and you’ll find yourself within a narrow cage whose far wall contains a little window, the counterpart of the orifice in Room 201, where the bond is actually posted, words between bondsman and clerk crackling tinnily back and forth through the barrier, as if one of them were a prisoner and the other a visitor—but which is which? The atmosphere of the cage is
sadness.
Sorrow’s reek wafts in from the cells beyond. But it’s all to the good. No more than six hours after the bond has been posted, and usually sooner, the jailbird will fly free.

Meanwhile, the next defendant is already slowly and sneeringly approaching the judge with a rolling gait, his hands in his pocket. He ignores the jingling of the bailiff’s keys. Ladies bustle back and forth with armloads of files. And his predecessor, the hangdog defendant, looks down as the bailiff unlocks the door to stage left, sending him back to limbo.

Any call that we get, we do anything and everything in our power to help them get out, said Roger Adair. But you can only go so far. You can’t pull a rabbit out of a hat. And if they just can’t work with you, you tell ’em you’re sorry, maybe they can get their bail reduced or plead out on their case or just get it taken it care of. But we do go to great lengths.

Mr. Adair had already admitted that he did not go to great lengths for defendants such as Strawberry, whose famous line
I’ll be right back
brought smiles to all the grizzled old drinkers’ faces as the new trick commenced his wait. Strawberry was off smoking crack, getting drunk, and engaging in other contract work. She might be back in an hour, or then again it might be a week. We’ve already agreed that her example remains, to use her own summation, irrelevant, the law having long since damned her beyond reach of any bail. —They take me and lock me up, she had fatalistically said. —But set that aside; one last time, let’s suppose her to be one of those near-virginal trick-turners still eligible for bail—in other words, not a parole violator but a doer of a shining misdemeanors. Now, in the bad old days of misdemeanors, a prostitute could expect to face five hundred dollars bail, which at ten percent to the bail bondsman (not Mr. Adair, obviously, but perhaps somebody akin to that tightly grinning fellow up in Spokane who accepted VCRs) required her to turn two extra tricks.
*
And, by the way, here’s an interesting
axiom I heard at the public defender’s office: Only two kinds of defendants fight a misdemeanor charge: middle- class people, who have the time and money to be outraged, and crazy people. The others just plead guilty.
*
Nowadays, assuming that unlike Strawberry she didn’t have other outstanding warrants, or wasn’t violating parole by getting picked up, she could simply be O.R.’d.

Some bondsmen must not have liked that development, I remarked.

It did take away their bread and butter, the Commissioner laughed.

So more misdemeanors get cited out, but—

But meanwhile, there’s an increase in the jail population in this state due to the increase in wobbler charges. The bail people have failed to understand that
almost all street activity is now criminalized.
They want a piece of that, but they don’t understand that these street folks don’t have any money.

A HYPOTHETICAL “WOBBLER” CASE

Suppose that a man strikes his wife, who calls the police.

Penal Code 273.5 ( misdemeanor ) Corporal injury by spouse of person cohabitating BAIL: $2,500 (1997-98) BAIL: $5,000 (1998-99)

or

Penal Code 273.5 ( felony ) Corporal injury by spouse of person cohabitating BAIL: $10,000 (1997-98) BAIL: $25,000 (1998-99)

In effect, wobblers allow the court to choose between making bail just barely affordable (or not) for hard-pressed defendants, or else utterly beyond reach. In the hands of wise magistrates, such discretion must be beneficial. In careless or brutal hands, it enables abuse. —Penal code 11337, Lam was saying, is possession of a controlled substance. It can be either a felony or a misdemeanor. But in many jurisdictions, the D.A. will automatically file a felony
every time.

That fact told more about the D.A.s in those jurisdictions than about the defendants, and it made me sad. I remembered reading about the Greek lawgiver Solon, who supposedly made death the punishment for every crime. When they asked him why, he said:
For the lesser crimes, death is deserved, and I have no greater penalty left for the greater crimes.
In the prosecution of such wobbler crimes I seemed to see (on a lesser scale, to be sure) the same sort of ruthlessly inflexible punitiveness.

It may be that too much discretion and too little are equivalent judicial evils. Perhaps gloomy disgust is the inevitable byproduct of
any
human attempt to quantify justice. Bail! How strange, bitter, and slippery it is!

I mean, where are our priorities here? said Commissioner Lam. This one defendant, all we did was give her a set of teeth and she started smiling. These people don’t wanna be out here smelling like they do. What we do at drug court is teach. I release him; he’s high; and he’s gonna get high again. You wanna plant that seed for next time and next time. I say to them, you’re taking that jailhouse with you everywhere you go until you give up that jailhouse.

Would you favor O.R. over bail, or vice versa?

I do not have a big isssue against O.R. or against bail. Both of them have a place. But one thing I will say. When you bail somebody, you can just
bail
them. But when you O.R. somebody, you can attach conditions like they have to attend a drug program. And one other thing I want to say: At least eighty percent of my O.R.s do show up in court.

Well, can you suggest any improvement to the way things are now?

What I dream of is a pretrial triage system, he said. I want a pre-arraignment multi-service center. Wouldn’t it be great if somebody
was there
to say: This guy’s issue is mental illness so let’s treat him for that, this guy’s issue is drug abuse so let’s put him in rehab, this guy’s issue is he’s just a bad actor? So many defendants would be better served in another arena than the criminal justice system. But it’ll never happen.

And I closed my eyes, and saw still another handsclasping defendant sitting with his legs braced apart on the floor of the public defender’s office and his bearded head sunken in sadness.