When San Francisco defense attorney Kevin Mitchell visits a new client in jail, there’s one thing at the top of his mind: "I want my clients to have some way to get out."
Mitchell says he’s got a better chance of winning a case if his client can walk freely into court in a coat and tie rather than under guard or in an orange jumpsuit.
"I always prefer having a client come through the front door," Mitchell said. "Judges and the prosecutors treat them better that way."
Research by the Arnold Foundation backs up Mitchell's claim. A 2013 report found that defendants who are in jail before trial plead guilty more often and get tougher sentences.
So a big part of Mitchell's job right off the bat is arguing for bail if his clients are denied it, arguing for a bail reduction if his clients can't afford it or, if the charges are minor, arguing to release his client with a promise they'll show up in court. But if the judge doesn't go for any of these options, Mitchell will often try to convince a judge to release his client on electronic monitoring.
Electronic monitoring seems like a win-win. Judges are reassured that defendants will show up to court dates, and defendants can keep their lives from falling apart while they wait for their case to be adjudicated. But it can come with a cost.
"Well, the first thing I ask is if my client can pay it," Mitchell said of electronic monitoring. And he said if they can't -- sometimes they just have to stay in jail.
Growing Popularity of Electronic Monitoring Devices
The use of electronic monitoring has increased sharply in the past 10 years for both pretrial defendants and sentenced individuals.
Leslie Summers, the director of community and government relations for Leaders in Community Alternatives (LCA), a company that does electronic monitoring for Riverside, Marin, Alameda and San Francisco counties, says it got started back in the '80s when Jack Love, a judge in New Mexico, was reading a "Spider-Man" comic strip.
"The villain put some type of a tracking device on Spider-Man," Summers said. "He wanted to know where he was all at all times."
The judge was struck by this and thought, " 'Hmm, why can't we do that with offenders?' " Summers said, "And so he got together with some engineer, and I believe in 1983 was the first prototype for electronic monitoring."
In California the use of pretrial GPS-tracking varies county by county. For example, in San Francisco there are about 70 pretrial defendants being monitored at any given time. In Alameda County there are roughly 12. San Francisco will pay for the cost of monitoring low-income defendants. Alameda won't, so defendants have to pay the daily cost themselves or stay in jail. These costs can add up quickly.
Hidden Costs of Electronic Monitoring
In January, Mitchell convinced a judge to let his client, William Edwards, out of jail with a bulky GPS monitor attached to his ankle. Then Edwards got a bill.
"I didn't know it was going to cost that much money," Edwards said. "The cost was about $900 a month or roughly $26 a day."
While on electronic monitoring, he was able to get his job back, but Edwards doesn’t make much money. The case dragged on so long that he began looking for a way out of the mounting bills, even if that meant pleading guilty.
"I had to convince him, ‘Don't take any deal, you're not guilty, don't take a deal just to get out of this financial bind. You'll pay that money back, alright? But you can't get back your guilty plea,’” Mitchell said.
After three months, prosecutors dropped the case against Edwards due to lack of evidence. But he said he’s still paying back family members who loaned him the money he had to pay LCA -- the company that does monitoring for Alameda County.
"In Alameda County we do have a flat bottom rate of $10 a day, which might sound like a lot," Summers said.
State law says no one can be excluded from the program for inability to pay, but the reality is that happens. LCA is a business, after all.
"You know we do the best we can," Summers said. "And unfortunately there is a financial aspect to it and LCA has staff, and you know it's a very labor-intensive program. At the same time, how much are we saving the county on people being in custody?"
Changing Pretrial Practices
Now Alameda County is changing the way it releases people pretrial. It just signed a $1.7 million contract with LCA to administer pretrial services for the county for two years, including drug treatment, weekly check-ins and monitoring of pretrial defendants. The new system will go into effect in about two months, and defendants will bear none of the cost.
This local shift comes at a time when lawmakers in Sacramento are also looking to release more people before trial. About 60 percent of people jailed in California are un-sentenced, and many of them are awaiting trial. Critics of the current bail system say many people are held in jail simply because they can't afford to bail out.
Bail reform bill SB 10 aims to put in place supervision and services for pretrial defendants. And electronic monitoring is just one of the conditions judges can put on a defendant's release. The idea is that it should be used sparingly, only when an individual is deemed particularly risky. Other services would include everything from court date reminders to drug treatment and daily or monthly check-ins.
If it passes, SB 10 would mean a lot less business for bail agents, but could mean opportunity for companies like LCA.
Berkeley Law School professor Malcolm Feeley is an expert on contractors like LCA. He said the current bail system in California is broken, but he cautioned that we shouldn’t get too seduced by contractors promising a silver bullet.
"Consistently, private contractors have offered innovation," he said. "Every one of their innovations that I've looked at has widened the net. It’s a good idea in theory but it ends up widening the net, catching more people and putting more people under supervision or under more intense supervision."
Vendors are not at fault, according to Feeley -- they are just promoting their products. But he cautioned that the nature of our criminal justice system -- from risk-averse judges to business-savvy contractors -- is to keep expanding the reach of the state even as it tries to shrink the number of people who are incarcerated.
Supporters of SB 10 emphasized that getting a workable bill is just a first step toward implementation, but that the hard details of how to do that are still being worked out.
To attorney Kevin Mitchell, pretrial services contractors look like the latest in a long line of industries that have made money off people like his clients.
"I often tell people we live in a commonwealth," he said. "The less wealth you have, the more common they treat you. And that just comes into play every day at the Hall of Justice."