New Jersey Lawyer News
Immigrants across the country are regularly denied bail or offered bail that’s too expensive. Last Spring, news broke of a State Senator from Queens, New York, lobbying to scrap the obsolete bail bond system of holding people who could not afford bail, many of whom were immigrants, in jail before their trial.
State Senator Michael Gianaris, in an interview with Vice News, called the current regime of setting bail in New York “something left over from England in the Middle Ages.” Now, California’s district courts are starting to take apart the same archaic bail-setting schemes that left so many disenfranchised New Yorkers in prison before they were proven guilty of the accused crime.
Unlike in criminal court, where those charged often hire bail bondsmen and only have to pay 10 percent of the total bail amount, immigrants detained by Immigration and Customs Enforcements (ICE) often have to pay the full amount of a bond. Most bond companies require collateral such as a house or a car, which many low income immigrants lack, resulting in a scarcity of bond companies geared toward immigrants.
In June, a federal judge in California ordered ICE and immigration courts to begin considering a detainee’s ability to pay when setting bond. This decision was issued as part of the class action lawsuit Hernandez v. Lynch, and applied to all noncitizens detained by immigration who are eligible for bond in the Central District of California. The case was brought by Xochitl Hernandez, a 60-year old grandmother who is the lead plaintiff in the lawsuit and was detained when ICE agents served a warrant on a house she was visiting. Although Hernandez did not live in the searched house, she was arrested and detained.
ICE refused to set a bond for her because the other people with whom she was arrested were allegedly gang members. Relying solely on this information, an immigration judge set an exorbitantly high bond amount of $60,000. After she spent six months detained and was unable to pay bond, the immigration judge still refused to lower the amount. It was only after community advocates rallied to her support, protesting her imprisonment and accusations of gang involvement, that she was eventually released and her bond lowered to $5,000.
In initializing immigrant bond reform, California state government officials have also noted the costliness of detaining undocumented immigrants in their assessment of immigrant bond reform. Citing the case of Cesar Matias, a gay man who fled Honduras for the United States to escape persecution, the American Immigration Council explains “As plaintiffs argued in the complaint, which was filed last April, detention of individuals like Mr. Matias purely because they cannot afford to pay bond is not only harmful to the individuals who are detained, but costly and wasteful for the government; at $159 a day, Mr. Matias’s four-year detention cost the government over $230,000 dollars.”
In both Hernandez’s and Matias’ cases, each argued that immigration officials do not consider ability to pay in setting bond decisions. Citing the Supreme Court precedent that says a judge setting bail must take a defendant’s ability to pay into account, both plaintiffs’ attorneys argued that immigration officials’ refusal to consider ability to pay was a violation of detainees’ right to due process. In the case of Xochitl Hernandez, the court ordered that immigration officials in the Central District of California must abide by the following precepts when setting bond for an individual:
- Consider the person’s financial ability to pay a bond
- Not set bond at a greater amount than needed to ensure the person’s a appearance in court
- Consider whether the person may be released on alternative conditions of supervision that would be sufficient to mitigate flight risk
This decision in central California is the first of its kind from a federal district court. It has already begun to set a precedent for other immigrant rights groups and groups seeking to reform immigration detention across the country. This decision has already gone into effect, benefitting immigrants throughout central California and setting fair standards for future ICE detention practices.