The County of Santa Clara


Held from January 23, 2018 (Item No. 29): Receive report relating to implementation of the Bail and Release Work Group Final Consensus Report on Optimal Pretrial Justice. (County Counsel)


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Approval of the recommended action would not result in any immediate costs.  In the long term, the costs of implementing these recommendations are expected to be largely or wholly offset by decreased costs associated with reductions in the County’s jail population and recidivism rates.   


In October 2016, the Bail and Release Work Group (BRWG) presented to the Board of Supervisors its Final Consensus Report on Optimal Pretrial Justice, containing the results of its two-year study of County policies and practices for screening, bail, incarceration, and supervision of criminal defendants during the pretrial phase; policies and practices in other jurisdictions; and best practices and national standards for bail and pretrial justice.  The Board approved 16 of the 18 recommendations in the Final Consensus Report for implementation and/or referral and further study by County departments and public agency partners. 

In October 2017, the BRWG provided a report to the Board regarding implementation efforts, and regarding its further research and study of several recommendations.  The Board directed staff to return in January 2018 with additional information on several items.  These items are discussed in this report.




1.              Issuance of Requests for Information

·        Recommendation 2: Explore Feasibility of Public or Nonprofit Alternative to Commercial Bail Bonds

·        Recommendation 6: Institute a Community Release Project in Partnership with Community-Based Organizations

BRWG Recommendation 2 involves establishment of a Community Bail Fund to enable low-risk indigent defendants to receive assistance paying money bail to obtain release from pretrial custody, without the non-refundable fees and collection efforts typically associated with surety bail bond agencies.  Community bail funds raise money that can be used to post cash bail for eligible defendants—e.g., those with low income who have misdemeanor charges with low bail amounts.  If the defendant makes all scheduled court appearances, posted bail is refunded by the court, and the full amount is paid back into the community bail fund to be used for other eligible defendants in the future. 

BRWG Recommendation 6 involves creation of a Community Release Project to involve community-based organizations in supporting criminal defendants in making all required court appearances, avoiding re-arrest, and maintaining employment and community relationships during the pretrial phase.  The services offered by the Community Release Project would resemble services offered by the Reentry Resource Center. 

In October 2017, the BRWG recommended that the Board of Supervisors authorize the issuance of a Request for Proposals (RFP) for the Community Bail Fund and Community Release Project.  Instead, the Board directed Administration and County Counsel to issue a preliminary solicitation to identify potentially qualified organizations and to obtain input regarding the optimal structures for both programs.  On January 2, 2018, Administration issued Requests for Information (RFI) for the Community Bail Fund and Community Release Project.  Responses are due January 31, 2018.  Once these responses have been received and reviewed, Administration and County Counsel will utilize the responses to craft an RFP for issuance. 

It is anticipated that Administration could release the RFP in April 2018, with proposals due in May 2018, review and evaluation of the proposals in June 2018, and protests (if any) reviewed and responded to in July 2018.  Contracts could be awarded in August 2018 following further negotiations with successful bidders.  These contracts would include provisions to protect personal data and privacy of clients served by the Community Bail Fund and Community Release Project, in compliance with the Penal Code, other privacy laws, and best practices.

2.              Rules and Regulations for Release Program through Department of Correction

BRWG Recommendation 11 aims to utilize authority conferred upon the County’s correctional administrator by Penal Code § 1203.018 to release an inmate who has had a bail amount set by the court, but has been unable to post bail, if the inmate has no outstanding holds or warrants and, among other possible conditions, has been in pretrial custody for 30 days or more on a misdemeanor charge.  The Penal Code authorizes such a program to offer release on electronic monitoring, and allows the Department of Correction (DOC) to contract with agencies such as the Office of Pretrial Services to provide such monitoring, as well as other specified program services. 

The Board directed Administration and County Counsel to consult with the District Attorney’s Office, the Sheriff’s Office, and DOC, and return to the Board with proposed rules and regulations prior to implementation of a pilot program for electronic monitoring release in early 2018.  However, the Sheriff’s Office and DOC indicated that they will not be prepared to approve draft rules and regulations of the pilot program until after June 2018.  This would allow them an opportunity to determine the impact of other recent policy changes before any additional programs increasing the number of releases from the jail are implemented.   

3.              Scope of Work for Data Analysis Consultant

·        Recommendation 14:  Collect and Share Data on Bail Performance Outcomes

BRWG Recommendation 14 is to improve collection and sharing of data on bail performance outcomes.  Although the Office of Pretrial Services collects and publicly presents data on its client outcomes, similar data from the bail industry is not currently available, hindering the County’s ability to conduct a robust analysis of the risk of pretrial failure (failures to appear in court, new arrests, and other violations) across all release types.  At the June 2017 BRWG meeting, however, the bail bonds industry indicated that it is willing to share data on bail performance outcomes with the County. 

In October 2017, the Board indicated that the collection and analysis of this information should be carried out through an independent study of demographic data and information concerning the cost of recidivism.  The Board directed Administration to issue a Request for Proposals (RFP) for a criminal justice data consultant to collect and analyze this data, and generate a report to the Board on the fiscal impacts of recidivism in Santa Clara County, similar to the Homeless Cost Study the County undertook in 2015.

Currently, Administration is working with the Pew Foundation to conduct a point-in-time cost benefit analysis of the County’s criminal justice system, and part of the analysis is looking at 2016 convictions.  That analysis will be presented to the Public Safety and Justice Committee at its January 2018 meeting.  A similar analysis for the County’s pretrial population through the data consultant should include three years’ worth of historical criminal justice data, use a cost benefit model, and provide recommendations on how the County can mitigate the cost of recidivism by homeless individuals in the future. The study should include demographics including age, race/ethnicity, and charge type/categories as outlined by the FBI Uniform Crime Data Reports. 





4.              In-Field Pretrial Supervision 

·        Recommendation 18:  Explore Adoption of In-Field Pretrial Supervision to Provide Additional Safeguards and Protect the Community

BRWG Recommendation 18 is to explore potential adoption of in-field pretrial supervision—a more intensive program that would include forms of supervision not currently offered by the Office of Pretrial Services, such as home and work visits, contacts with victims, submission to search and seizure requirements, and/or in-field verification of compliance with court-ordered conditions—to enable moderate-risk defendants to be safely released, rather than remaining in custody, or being released on bail with no supervision.  Because of the resource-intensive nature of such a program—including the fact that it could only be carried out by sworn peace officers, and not by unsworn Pretrial Services Officers—Administration and County Counsel recommended that implementation of this recommendation be held pending careful implementation and evaluation of less intensive release options for lower-risk defendants.  The Board agreed with this recommendation, and requested periodic reports regarding any new considerations.  Currently, Administration and County Counsel are not aware of any new considerations relating to in-field supervision.  This recommendation will be revisited and brought back to the October 2018 BRWG check-in meeting for further discussion upon implementation of the other recommendations.

Pending the October 2018 BRWG meeting, Administration and County Counsel recommend that further reports regarding implementation of BRWG recommendations be presented to the Public Safety and Justice Committee, with the exception of specific action items that require approval of the full Board.


The recommended action would have a positive impact on children and youth with parents who are involved in the pretrial justice system by developing policies that promote prompt release in appropriate cases and by increasing the positive community impacts associated with a fair, evidence-based pretrial justice system.


The recommended action would have a positive impact on seniors and/or their families or caretakers who are involved in the pretrial justice system by developing policies that promote prompt release in appropriate cases and by increasing the positive community impacts associated with a fair, evidence-based pretrial justice system.


The recommended action would promote social equity by helping the County and its partners improve the administration of fair, evidence-based pretrial justice.


The Board of Supervisors created the BRWG in February 2014 to research, analyze, and recommend improvements to current policies and practices for incarceration, bail, screening, and supervision of criminal defendants, including those in domestic violence cases.  After its commencement, the BRWG held various public meetings over the course of two years to discuss its research and recommendations regarding pretrial adjudication practices.  In October 2016, the BRWG presented its Final Consensus Report on Optimal Pretrial Justice to the Board of Supervisors, which approved 16 of the BRWG’s 18 Recommendations for referral, implementation, and/or further study.   In November 2016, the Board of Supervisors approved the addition of two members to the BRWG representing the bail bonds industry, which were filled for the June 9, 2017 BRWG meeting. 

At the June 9, 2017 BRWG meeting, the BRWG considered specific proposals for implementation.  The BRWG requested that staff report back to the Board in October 2017 regarding the recommendations that were further reviewed, implementation timelines for all the recommendations, and analysis of how the recommendations fit into the County’s public safety and justice work more broadly.  At the October 3, 2017 Board meeting, the Board directed staff to return in January 2018 with further information regarding certain items.


Implementation of several of the BRWG’s recommendations may be hindered, and the BRWG would not be able to report out on its progress.

Meeting History

Jan 23, 2018 9:30 AM Video Board of Supervisors Regular Meeting

Held to February 27, 2018 at the request of Administration and County Counsel.

RESULT:HELD [UNANIMOUS]Next: 2/27/2018 9:30 AM
MOVER:Cindy Chavez, Vice President
SECONDER:Mike Wasserman, Supervisor
AYES:Mike Wasserman, Cindy Chavez, Dave Cortese, Ken Yeager, S. Joseph Simitian
Feb 27, 2018 9:30 AM Video Board of Supervisors Regular Meeting

Held to date uncertain at the request of Vice President Chavez.

MOVER:Mike Wasserman, Supervisor
SECONDER:Cindy Chavez, Ken Yeager
AYES:Mike Wasserman, Cindy Chavez, Dave Cortese, Ken Yeager, S. Joseph Simitian