In a dramatic move, California has overturned its historic cash-based bail system and ordered local courts to create a “risk-based” system to decide who gets out of jail — or not — before trial.
Gov. Jerry Brown signed Senate Bill 10 on Tuesday and called it a major step toward fairness. “Today, California reforms its bail system so that rich and poor alike are treated fairly,” Brown said in a statement.
The bill’s author, Sen. Bob Hertzberg, D-Los Angeles, described the basic philosophy: “The essence of this measure is we’re going to look at people as people.”
Critics, though, said the changes are complex and may create a less fair system, potentially forcing more people to remain in jail awaiting trial.
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State bail bonds industry representatives say the law will kill their industry and have vowed to fight it. Said David Quintana, a lobbyist for the California Bail Agents Association: “You don’t eliminate an industry and expect those people to go down quietly,” he said. “Every single weapon in our arsenal will be fired.”
What is the current law?
When someone is arrested, that person typically has a constitutional right to post bail to get out of custody before standing trial.
A bail bondsman often assists with that process, requiring a much smaller financial commitment from the arrested individual. But that ultimately comes with a fee of up to 10 percent for the bondsman. A third, but rarely used, bail option involves putting up your property in exchange for release.
Those who fail to show up for court lose their bail money. So do bail bondsmen when someone does not show, which is why they aggressively track their defendants.
Under current law, the bail amounts are established by judges in each county. Each crime carries its own bail amount. Felony bail begins at $10,000. Here is Sacramento County’s bail schedule.
Does every defendant have a right to bail?
The option does not exist when a defendant is charged with a capital crime, such as homicide; a felony involving violence or sex; if the judge decides the person’s release would result in great bodily harm to someone; or when the defendant has threatened someone.
What does this bill do?
The bill eliminates the cash-payment bail system and creates a “risk-based” pretrial analysis that will be conducted locally. Counties will establish local agencies to evaluate any individual arrested on felony charges for the person’s likelihood of voluntarily returning for court hearings and their chances of re-arrest.
A person whose risk to public safety and risk of fleeing is determined to be “low” would be released with the least restrictive non-monetary conditions possible, according to the bill. Those conditions are not specified in the law, but might include a monitor attached to a defendant’s ankle or required check-ins with authorities between hearings.
“Medium-risk” individuals could be released or held depending on local standards under the new law.
“High-risk” individuals would remain in custody until their arraignment, as would anyone who has committed certain sex crimes or violent felonies; is arrested for driving under the influence for the third time in less than 10 years; is already under supervision by the courts; or has violated any conditions of pretrial release in the previous five years.
SB 10 also introduces a process for prosecutors to file for “preventive detention,” blocking release pending trial, if they believe no conditions would ensure public safety or the defendant’s appearance in court.
The law takes effect in October 2019.
How is the risk assessment set up?
Why do this?
Supporters contend the current cash bail system is “unsafe and unfair” because release decisions are made based on a person’s bank account, not on public safety or whether the person is a flight risk. “Detention decisions that are based on money and personal wealth are inherently inequitable and do nothing to keep us safer,” a Senate analysis says of Hertzberg’s argument.
How did this come about?
The law was proposed last year, but stalled in the Legislature. Brown and California Supreme Court Chief Justice Tani Cantil-Sakauye worked with proponents on refashioning the bill this year. The bill has the support of Democratic gubernatorial candidate Gavin Newsom, as well as the Chief Probation Officers of California and the Judicial Council, which oversees the court system.
The American Civil Liberties Union of California initially sponsored the bill, saying it would end “predatory lending practices of the for-profit bail industry.” But after the revised version was unveiled earlier this month, the organization dropped its support, arguing that it gave too much discretion to judges to keep people locked up awaiting trial.
They were joined by many other groups that previously supported the measure. “The prior version of SB 10 stayed loyal to the ‘presumption of innocence’ that is the bedrock of our criminal justice system,” wrote California Attorneys for Criminal Justice, a group of defense lawyers. The revised version creates “a substantial likelihood that more people will be incarcerated pretrial than under current law.”
What does this do to the bail bond industry?
Topo Padilla, president of the Golden State Bail Association, said the bill eliminates his industry. “Bail bondsmen are insurance agents. We issue an insurance policy to the court guaranteeing a person’s appearance in court. If a person fails to appear in court, the bail industry goes out and returns people to the court. If we fail to return the person to court in time, we pay the full amount of the bond.”
Now, he said, people charged with crimes can only get out of jail if a judge releases them. He predicted that law enforcement “is now going to be strapped with time, effort and costs with returning those people to custody.”
What’s the fiscal effect of this law?
According to the Assembly Appropriations Committee, the law will likely cost “in the low hundreds of millions of dollars annually,” mainly for courts to create a system for pretrial assessment services to determine if a person can be released. Other legislative analyses put the annual cost at about $200 million.
The Assembly committee analysis says there could also likely be millions of dollars saved annually in jail costs if fewer defendants are held before trial. However, the analysis notes that no money would be saved if county jail administrators use the bed space instead to house convicted criminals for longer periods of time.