On any given day, most inmates in California jails have not yet been convicted of a crime.
About 63 percent are being held awaiting trial, according to data collected by the Board of State and Community Corrections, an average of nearly 47,000 people. Federal statistics on the largest urban counties show that from 2000 to 2009, California kept unsentenced felony defendants in jail at nearly twice the rate of the rest of the country.
For state Sen. Bob Hertzberg, the problem is clear: Bail is “just too expensive.” The median amount in the state is $50,000, according to the Public Policy Institute of California, five times higher than the national average.
Too many Californians find themselves stuck in custody because they cannot afford to bail out, the Los Angeles Democrat said, a personal crisis that can ripple across their lives in dramatic ways.
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“They can’t pay their rent. They can’t pay child support or take their kids to school. There’s so many other consequences to that,” Hertzberg said. “That isn’t patriotic. That isn’t American. That isn’t the right thing to do.”
With criticism mounting that it creates unequal justice based on wealth, California is rethinking monetary bail. Hertzberg and Assemblyman Rob Bonta are pursuing legislation this session to overhaul the practice, while Chief Justice Tani Cantil-Sakauye formed a working group in the fall to explore possible changes.
“The only nexus is between who gets out and who has money,” Bonta, a Democrat from Alameda, said. “We’re punishing people simply for being poor.”
$50,000 Median bail in California, which is five times the national average
Political interest in the issue has been surging nationally, with New Jersey and New Mexico recently eliminating bail for minor crimes. But any measure will likely face heavy opposition from bail bond agents, police officers and district attorneys who see the current system as integral to public safety.
Topo Padilla, president of the Golden State Bail Agents Association, said monetary stakes are the best way to ensure that someone appears in court after being released.
“I can’t guarantee it either. But I have someone to back the game up. I have a co-signer,” he said. “And we do that at no cost to the taxpayers.”
California allows each county to set its own bail schedule by crime. In Sacramento, for example, rates range from $5,000 for possession of a controlled substance to $20,000 for resisting or deterring an officer to $1 million for sexual assault of a child.
Offenders can pay the entire amount, to be returned at the conclusion of their case, or apply for a surety bond through companies that charge a 10 percent fee. Those who cannot afford either option may ask a judge to adjust the amount based on factors such as their criminal history, the seriousness of the crime and their likelihood of showing up for their next court date.
It took David Howell 39 days and three requests for a bail reduction before he secured his release from the Sacramento County jail early last week.
You feel like you’ve been thrown away. You feel like nothing.
David Howell, who couldn’t afford his bail and tried multiple times for a reduction
In late December, the retired California Highway Patrol dispatcher was arrested on a charge of possession of a firearm while under a restraining order. He was stunned and “devastated” to find out that bail had been set at $200,000, twenty times the standard rate in Sacramento County for that misdemeanor.
At age 62, his only previous arrest had come in October, for a misdemeanor violation of the restraining order. He has disputed the allegations of domestic violence that prompted the order and his subsequent charges in court.
Unable to afford the massive bail fee, Howell said, “I felt trapped.” For weeks, he could not take daily treatments for two eye conditions that are slowly making him blind.
Bail was eventually dropped to $100,000 and then, on Friday, to $15,000, in recognition of Howell’s short criminal history. After deliberating for two days about whether the money would be better spent on future legal costs and medical bills, he paid $1,500 for a commercial bail bond because fighting his case would be easier from outside jail.
“You feel like you’ve been thrown away. You feel like nothing,” Howell said. Despite his years in law enforcement, his faith in the fairness of the legal system is lost: “All the time I had been working in a dream world.”
Though Bonta and Hertzberg announced the bail overhaul as a legislative priority when the session began in December, nothing specific is proposed. Ideas have been floated to introduce risk assessment into the process, lower the schedule of bail rates or even do away with monetary bail altogether.
Consensus on a solution has not emerged, even among political allies. Hertzberg said he doesn’t mind the idea of someone bailing out of jail, as long as it is affordable, and his goal is not to put bail bond companies out of business.
The only nexus is between who gets out and who has money.
Assemblyman Rob Bonta, D-Alameda
Others working on the legislation, such as the American Civil Liberties Union of California, would like to see monetary bail eliminated. Legislative advocate Mica Doctoroff said the integrity of criminal justice is compromised when families have to pay a for-profit company to secure their loved ones’ freedom, potentially putting them into debt, even if the charges are later dropped.
“You and your family can end up being forced to pay these fees for a crime you didn’t even commit,” she said.
The difficulties of mounting a defense from behind bars increase pressure on those who cannot post bail to simply accept a plea bargain and resolve their case, Doctoroff added. “Our existing money bail system has really driven justice and freedom further out of reach for far too many people in California, particularly low-income people and people of color.”
Bonta sees Washington, D.C., which got rid of bail in the early 1990s, as a possible model. The district releases anyone who is not evaluated to be a serious public safety or flight risk – more than 90 percent of those arrested in 2015 – usually with conditions such as regular check-ins with pretrial officers, drug testing or an ankle monitor.
About 90 percent of the defendants released make it to all of their subsequent court dates, and 10 percent are re-arrested before their case is resolved. Supporters say it demonstrates that alternatives to bail can be highly effective – and at a fraction of the cost. Each inmate costs California jails an average of $114 per day, according to a 2012 survey by the Board of State and Community Corrections, while the Pretrial Services Agency for the District of Columbia estimates that it spends $18 per day to supervise each defendant on release.
“There’s a huge moral imperative to make the change. There’s also a fiscal imperative,” Bonta said.
63 Percentage of inmates in county and local jails who are in pretrial detention
The idea of such a radical change to California’s bail system alarms many law enforcement officials and prosecutors, such as Michele Hanisee, president of the Association of Deputy District Attorneys in Los Angeles County. She said eliminating bail would benefit serious criminals and “result in ridiculous harms to the public.”
“No one should ever plead guilty just because they want to get out and they can’t afford bail. But how often is this happening?” Hanisee said. “So we don’t need to fix problems that don’t exist.”
Cory Salzillo, legislative director for the California State Sheriffs’ Association, said sheriffs are “open to hearing concerns” about bail, but could not support changes that would prevent them from keeping “the most dangerous people in custody.”
“One of the main purposes of jail is to house people pretrial,” he said.
One potential avenue for compromise could be a reduction of the bail schedule. Even Padilla, whose family runs Sacramento’s Greg Padilla Bail Bonds, complained that the rates are too high, “which makes our job less effective, because fewer and fewer people can afford bail.”
He said the bail industry in Sacramento County has seen business steadily decrease over the past decade as the cost of bail has climbed. Ten years ago, he said, bail bond companies would bail out about 650 people per month; now it is fewer than 500 per month.
Padilla said bail should give people a tool to get out of jail, rather than acting as a punitive measure to keep them locked up. For that he blamed “prosecutors, prosecutors, and I’m going to say it again, prosecutors.”