On any given day in California, tens of thousands of people sit in county jail not because of a criminal conviction, but because they can’t afford to leave.
Such is the travesty of justice that is the cash bail system. At $50,000, the state’s median bail amount is out of reach for most defendants, who tend to be poor or working class.
Many find themselves with little choice but to stay locked up for weeks or even months, letting their lives unravel on the outside while the legal system runs its course. Others opt for plea deals to get out faster, accepting responsibility for crimes that they may not have committed, but can’t afford to fight.
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Affluent defendants have no such problem buying their way to pretrial freedom.
This is not what criminal justice should look like in California – a state that has gone to great lengths to unwind 1990s-style tough-on-crime laws, reforming the parole system and sentencing guidelines.
Reform fatigue is certainly part of the problem. Proposition 57, sponsored by Gov. Jerry Brown, was approved last November, offering a thoughtful approach for determining which inmates with which lengthy sentences get released sooner; the California Department of Corrections and Rehabilitation announced new regulations recently to implement it. The voter-approved Proposition 47 of 2014 has been more mixed, resulting in the release of thousands of prison inmates but offering few if any rehabilitation services.
Still, fixing the state’s antiquated bail system must remain in the mix, for it is neither fair nor advantageous for anyone but the owners of bail bonds companies.
To that end, Sen. Bob Hertzberg, D-Los Angeles, and Assemblyman Rob Bonta, D-Alameda, have introduced legislation that would make bail something of a last resort – and even then, only at an amount that’s affordable. The legislation is being refined, but it’s a step in the right direction.
Under their proposal, people arrested for low-level crimes would be given an assessment to determine how likely they are to skip town or cause trouble if they were let go before trial. Having a steady job or a family would work in a defendant’s favor, for example.
Based on recommendations from what would be a pretrial services agency in each county, the court would make the final decision in each case. Most often, defendants would be set free on their own recognizance. Others might be released with an ankle bracelet for remote monitoring or with orders to check in with law enforcement every so often.
For people accused of serious or violent felonies, such as rape or domestic violence, the system would work much as it does now. Defendants would go before judges, who might set bail or order them to remain in custody until trial.
The bail bonds industry is alarmed, of course. It stands to lose everything. But law enforcement groups aren’t so much opposed to the legislation as they are worried about reforms being rushed into law. They note that a working group convened by California Chief Justice Tani Cantil-Sakauye, among the critics of the bail system, is studying the issue and isn’t scheduled to report on its findings until December.
Hertzberg and Bonta should make sure to heed advice from judges, who will have to implement any reforms. There are reasons to push forward with responsible legislation, too. It’s not OK that in California, that justice, as Hertzberg told the Senate Public Safety Committee, continues to be “determined by the size of your wallet and not by the size of your public safety risk.”
The median bail in the state is five times higher than in the rest of the United States. Even bail bonds companies agree the bail schedules, which judges use as a guide, are too high and set too arbitrarily.
What’s more, by most measures of poverty, Californians continue to rank near the bottom. Acccording to the California Poverty Measure, 20 percent of residents lacked the resources to meet their basic needs.
Defendants who can’t pay bail – or even the standard 10 percent, nonrefundable fee to bail bonds companies – tend to sit in jail for weeks on end, and can lose their jobs, lose their apartments, lose their children to Child Protective Services. That destabilizes families and stresses the social safety net.
Meanwhile, California taxpayers spend millions of dollars every day to house some 47,000 unsentenced defendants. They make up more than 60 percent of those sitting in jails, according to the Board of State and Community Corrections, and in some counties, sheriff’s departments must free others who have already been convicted to avoid overcrowding.
Bail is a relic of a time when most people saw it as the only way to compel defendants to return to court to face trial. Even that’s debatable, though, given that California relies on bail more than most states and still has had higher rates of people failing to appear in court and getting rearrested, according to the Public Policy Institute of California.
These days, there are just better, evidence-based ways to go about making sure defendants stay on track. Even more conservative states such as Arizona and Kentucky have revamped their pretrial court systems and virtually eliminated bail.
Washington, D.C., did away with bail decades ago. A handful of counties in California are experimenting, too, with promising results.
Under the control of President Donald Trump and U.S. Attorney General Jeff Sessions, the federal system may revert back to ineffective tough-on-crime policies. But states must continue their march toward criminal justice reform. In this, California should be a leader, not follower.