California Forum

Unfair and unsafe: Even prosecutors want to end California’s reliance on money bail

David LaBahn
David LaBahn

Some believe requiring people who have been arrested for a crime to pay bail is necessary to ensure their return to court and protect public safety. As a California prosecutor, I have found that accountability and community safety can be achieved by alternate means.

I am not alone. District attorneys in Manhattan and Brooklyn announced earlier this month that they will no longer request money bail in most misdemeanor cases. They join the growing ranks of prosecutors around the nation that recognize traditional money bail unnecessarily incarcerates individuals and does not promote public safety. Instead they support making pretrial release decisions based on validated risk assessment tools and, when necessary for public safety, pretrial services. It is time California does the same.

The state’s current bail system automatically sets the amount a defendant must pay to be released before his or her trial. Each county determines those amounts based on the severity of the alleged crime, but often those amounts are incredibly high.

The median bail amount in California is $50,000, more than five times the national median, according to the Public Policy Institute of California. If the individual is not released on his or her own recognizance, to get out of jail while awaiting trial, an individual must either post the full amount themselves or pay a bondsman a nonrefundable fee.

Some defendants cannot afford to pay even low bail amounts and are detained. Even if those individuals pose no flight risk or danger to the public, they must sit in jail until their matter is resolved.

We can do better. A system that uses wealth as a criterion for release fails the public. It allows dangerous individuals to walk free merely because they can afford to do so. As a career prosecutor, I find that this practice is often contrary to public safety.

At the same time, those unlikely to reoffend often must endure long jail stays while courts resolve their cases. Even a few days behind bars can carry drastic consequences. Some people lose access to social services, housing, employment, and child custody. Rather than supporting themselves and their families during this time, less wealthy defendants languish behind bars. This destabilizes communities and as a result further endangers public safety.

Risk, danger to the community and data-driven practices should guide pretrial release decisions. Other jurisdictions have already successfully limited money bail.

Washington, D.C., for example, releases more than 90 percent of criminal defendants with no financial obligations. With the assistance of pretrial services, 88 percent of those released return for all scheduled court appearances, and 99 percent are not rearrested for a crime of violence.

Closer to home, Santa Clara County has proven the effectiveness of quality pretrial services in lieu of cash bail. Ninety-five percent of participants in their pretrial program made it to all scheduled court appearances and 99 percent remained arrest free. California state and county governments should take advantage of other jurisdictions’ successes by implementing their effective practices.

Support for bail reform in California is growing. In October, a task force appointed by Chief Justice Tani Cantil-Sakauye recommended that risk, rather than wealth, inform release decisions.

Gov. Jerry Brown also has acknowledged the inequities of money bail and has committed to finding solutions to better protect the public. The governor and chief justice are currently working with legislators to find solutions this term.

Of course, truly dangerous individuals should remain in jail before trial. Limiting money bail does not impede this effort. In fact, reforming our system to base release decisions on risk would help prevent dangerous individuals from buying their way out of jail.

Our current money bail system does not adequately protect the public and unnecessarily incarcerates too many Californians. California should be a national leader on this issue. The time for meaningful bail reform is now.

Following a hearing Tuesday April 18, 2017 for a bill to overhaul California's bail system, Dog the Bounty Hunter argued that supporters are wrong to say money bail harms poor people.

David LaBahn is president and CEO of the Association of Prosecuting Attorneys, a former deputy district attorney in Orange and Humboldt counties, and a member of Law Enforcement Leaders to Reduce Crime and Incarceration. Reach him at David.LaBahn@APAInc.org.

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