mail

BAIL AND THE LGBTQ COMMUNITY

California lawmakers are seeking to abolish the cash bail process, claiming that the current system favors rich defendants and leaves poor defendants in jail. However, in doing away with cash bail would leave all defendants waiting in jail until a release evaluation can be completed.

Assemblyman Rob Bonto (D-Oakland) and Senator Bob Hertzberg (D-Los Angeles) are sponsoring bills in the State Assembly and Senate that would abolish the cash bail system in California, altogether. The bills, AB42 and SB10 respectively, seek to replace the bail system with a process of individual evaluation for each defendant. After the evaluation, a defendant would be recommended for release until his or her trial date, or remanded to custody if the evaluation found them to be at high risk for not appearing for court proceedings.

This evaluation period would leave defendants in holding cells and county jails while a special agency looked over their case and decided whether they posed a flight risk, or not. For members of the LGBTQ community, this waiting process could be dangerous and even deadly.

SB10 Endangers The LGBTQ Community

The instances of violence against sexual minorities in county jails and prisons are much higher than it is against straight prisoners, according to a report from the Williams Institute at the UCLA School of Law. In fact, the study shows that violence against sexual minorities in custody is so high, that more than 85 percent of LGBTQ prisoners are held, at least part of the time, in solitary confinement, often for their own safety.

While solitary confinement may be a solution (though not a very good one) for safety during long-term incarceration, it is not possible during a holding period immediately following an arrest. After an arrest, defendants are taken to a processing center, or smaller jail, to be “processed.” Their fingerprints and photo are taken, information regarding identity is gathered, and then often a transfer to a much larger county jail is arranged for. This process can take anywhere from two to twenty-four hours. During this time, the defendant is often held in large common cells or drunk tanks with other arrestees. Violence against sexual minorities during this holding process is common and often can’t be foreseen or prevented by law enforcement.

This period of holding can be scary enough by itself. However, the transfer to a larger, county facility represents a much greater danger to prisoners of alternative sexual identity. Many defendants welcome the opportunity to post bail and obtain a release from jail as quickly as possible, avoiding the transfer to a larger facility, altogether.

If lawmakers are successful in abolishing the cash bail process, there will be no fast way to get out of jail before a transfer to a larger facility. All prisoners will have to endure a “risk assessment” and wait for a judge to determine their eligibility to be released on their own recognizance or held until their trial can take place. This is a situation that many within the LGBTQ community fear will lead to greater violence against them inside large county jails where overcrowding is notoriously problematic and where solitary confinement is not always an option for protection, or not always in time.

How Does Bail Work and Why?

Cash bail is a system that has been used for pretrial release of defendants in the United States since before the Revolutionary War. When a person is accused of a crime, if they do not wish to remain in jail until their trial, a set amount of money, or bail, is required to be held by the court to ensure that the defendant will appear for court hearings and trials, until their legal case has come to an end. Once the case has been concluded, the court will then return the money to the person who paid the bail.

Bail is set by a judge. A bail schedule is agreed upon each year, for each county, which allows arresting offices to see how much the bail for a specific crime will typically be. Without a bail schedule, arrested persons would have to wait for a hearing before a judge to learn what their bail would be so that they could begin to make arrangements to post bail and get out of jail. Having a bail schedule available at each jail or processing center, allows defendants to post their bail much more quickly than they typically would be able to do if they had to wait for a bail hearing.

What Is A Bail Bondsman?

Bail is calculated on a number of different factors, including the severity of the crimes for which a person is being arrested and the number of crimes with which they are being charged. Bail can be as little as a hundred dollars or as much as a million, depending on the severity and number of the crimes. When the bail is very high, it can be difficult for a person, or their friends and family, and to come up with the cash to pay the bail. Even if they have the cash for bail, that money may be better used hiring a good defense attorney to fight the charges. In these cases, a bail bondsman can be of great assistance.

A bail bondman represents a surety company, which underwrites a guarantee to the court that if the defendant doesn’t show up for hearings and trial and fulfill the conditions of his or her release, that the surety company will pay the court the full amount of the bail being required. For this service, the defendant pays the bail bondsman a non-refundable fee. This fee is typically about 10% of the total cost of the bail amount.

Paying a bail bondsman 10% is much cheaper than coming up with the entire amount of bail and offers the defendant the opportunity to be out of jail, home with friends and family, continue employment and fight the charges against them from the comfort of their home, rather than in the danger of a jail cell.

Bail Bond Agents Assist The Community

Bail bond companies are often seen as being a part of the law enforcement system, as a tool for keeping those arrested accountable to the system and ensuring individuals show up for court appearances and fulfill the conditions of their bail. However, members of the bail bond industry often provide a variety of other services that aren’t currently being provided by anyone else.

On any given day, bail bond agents receive multiple calls from family and friends who don’t know if an individual has been arrested, or where they’re being held. They’ve called local jails, only to get recorded messages or unhelpful law enforcement officers answering the phone. They’re desperate to know where their loved ones are and what they can do to get them home.

Bail bond agents use their time and technology to track down arrested individuals and are able to discover where they’re being held and on what charges. Then, they can relay this information to the friend or family member and help them work through the process of getting their loved one out of jail and home safely. Sometimes these activities result in a paid bail bond, but often these services are just provided as a service to the community.

Bail Bond Agencies Serving The LGBTQ Community

When a person of alternative sexuality is arrested, there is a great deal of angst on the part of the person being arrested and those who love him or her. The dangers of jail life are well known among the LGBTQ community and everyone concerned is likely to be on edge and in a state of turmoil. Ensuring that their friend or loved one is released from jail as quickly as possible, especially before being transferred to one of the large county lockups, is of the utmost importance. A bail bondsman is often the fastest means of locating and releasing an individual being held in custody. When a bail agent is contacted quickly enough, the individual can typically be released as soon as the processing has been completed. This limits the unpleasantness and danger of being housed, even in drunk tanks and holding cells, with a variety of other offenders, many of them violent.

In 2017, just such an incident arose when a young man and his boyfriend were arrested in Laguna Beach because of an argument. Both men were charged with battery and taken to the small jail in downtown Laguna Beach. This small jail is not equipped to hold people long and is only used as temporary holding, during processing, before defendants are transferred to the much larger county jail.

Late at night, Jesse from Mr. Nice Guy Bail Bonds received a call from the mother of one of the young men. She was desperate to find someone to help her get her son out of jail before he was transferred to the county jail. The reason for her desperation was that one of the deputies involved in the arrest had called her, urging her to secure her son’s release before transfer. In the deputies words, “Your son will not make it in county jail, you need to arrange bail for him immediately.” Jesse noted that it is unheard of for an officer to make a call on behalf of a prisoner. That the officer had done so alerted Jesse to the extreme urgency of the situation.

The mother lived in Ohio and couldn’t personally do anything for her son. She was distraught, having called a couple of other bail bond agencies, but they were unable to do anything because of the late hour. Jesse quickly called the jail in Laguna Beach and had them put a hold on the transfer. He went straight to the jail and the young man was released minutes after Jesse had posted bail. However, the young man was unwilling to leave his partner in jail. Both of the young men were slightly built, with feminine features, and he feared for his partner’s safety.

There was no family willing to pay the bond fee for the young man who was still in jail, and the young man who had just been released had no money, either. Jesse said, “Knowing how poorly, members of the LGBT community are treated at the county jail, I quickly posted the bail with no money down for his friend. In the end, everything worked out. Both went to their court dates, were sentenced to anger management classes and avoided county jail.”

If lawmakers are successful in abolishing the bail bond industry, they will destroy a valuable resource and ally for the LGBTQ community. Having someone to call, who can act on their behalf to obtain their release from jail as quickly as possible, is invaluable to those who have much to fear behind bars.

Arrests Among The LGBTQ Community

Unfortunately, a disproportionate number of gay, lesbian, bisexual and transsexual people are arrested each year. According to a study published by the Williams Institute at the UCLA School of Law, over 40% of incarcerated women and 9% of incarcerated men are sexual minorities. (Sexual minorities, as defined by the study, included anyone who identified themselves as gay, lesbian, bisexual, transgendered, or anyone who had had sex with a person of the same sex, but did not identify themselves as gay, lesbian or bisexual.) However, those identified as LGBTQ makeup only 3.5% of the general population. This extreme over-representation of the LGBTQ community in jails and prisons is concerning on a number of levels, especially when one considers the increased risk of violence against sexual minorities in prisons and jails.

Dangers Of Jail For The LGBTQ Community  

Two of the authors from the original study published by the Williams Institute, Lara Stemple and Ilan Meyer, went on to write an analysis of their work for the Advocate. In their piece, “The Unspoken Horror of Incarcerated LGBT People”, the authors discuss the disproportionate representation of LGBTQ in the prison community and their increased dangers during incarceration.

According to the authors, male inmates who are gay or bisexual are six times more likely to be sexually assaulted by a staff member or inmate than are their straight counterparts. They also found that sexual minority inmates are more likely to experience punishments such as solitary confinement. Sometimes segregation is labeled as protective, and law enforcement officials claim the inmate is being kept separate from the rest of the population as a precaution against violence. However, the resulting damage from this type of seclusion and exclusion was found to be severe. Solitary confinement, even for “protective reasons,” make an inmate ineligible for institutional programs and visits from family and friends.

In fact, according to Solitary Watch, 85% of LGBTQ people behind bars report being held in solitary confinement for at least some part of their incarceration. Of that 85%, almost half had spent two years or more in isolation. A full 38% reported having been housed in solitary for “protection,” either at their own request or due to abuse by other inmates. Half reported being placed in solitary “for their protection, but against their will.”

A report by the Bureau of Justice reports nearly 30% of lesbian, gay and bisexual prisoners were held in restrictive housing (their term for solitary confinement) during 2011-2012, compared to just 18% of heterosexual prisoners. In jails, the rates are slightly lower, with 22% of LGBTQ inmates being held in solitary confinement, compared to 17% of straight inmates.

Due to increased violence behind bars and an increased likelihood of mistreatment by authority figures, it is unsurprising that the authors found members of the LGBTQ community to experience higher rates of psychological distress from incarceration.

Common Offenses For Which LGBTQ People Are Arrested

While members of the LGBTQ community may be arrested for a variety of crimes, the most common are variations of intimate partner violence.  (Intimate partner violence is defined as violence between or against someone with whom the perpetrator has or has had an intimate or dating relationship. This includes, but is not limited to, marriage, dating, and casual sexual relationships, and anyone with whom a person shares parenting of a child.)

Intimate partner violence among the LGBTQ community is a problem which often lands one partner, or both, in jail. A report by WhyItMatters examined the instances of violence between intimate partners in the LGBTQ community. The study found that intimate partner violence occurs in approximately 25 to 33 percent of all LGBTQ relationships.

The National Violence Against Women Survey reported that slightly more than 11 percent of women who lived with a woman in a romantic relationship reported being raped, assaulted, and/or stalked by a female cohabitant. Domestic violence between gay couples is much higher, with 39 percent of gay men surveyed reporting at least one episode of battering over a five-year span. The study points out that domestic violence in the LGBTQ community is often under-reported because it is often not recognized by the arresting officers as having occurred in the context of a romantic relationship. In these instances, both people are simply charged with non-domestic violence related crimes.

Domestic Violence Among The LGBTQ Community

Domestic violence includes physical violence, sexual violence, threats of physical harm, psychological or emotional violence, and stalking. These crimes can be charged under a variety of criminal codes, depending on the severity of the incident and the judgment of the arresting officer.

Domestic violence is known by a variety of names including:

  • Domestic Violence
  • Domestic Abuse
  • Assault
  • Battery
  • Simple Battery
  • Misdemeanor Battery
  • Sexual Battery
  • Domestic Battery
  • Corporal Injury
  • Spousal Abuse

The high incidents of domestic violence among the LGBTQ community are unfortunate and should be addressed by individuals and the community. However, the likelihood of a person of alternative sexual identity to land in jail, even temporarily, because of these incidents is a danger to that individual. A means of getting out of jail quickly needs to be maintained, in order to protect those who are in increased danger behind bars. Cash bail is the fastest and easiest method.

Eliminating cash bail will not be good for the LGBTQ community or the State of California. Make your voice heard! Contact your state representative and let them know how you feel about AB42 and SB10. Find your state representative here.