California should join other states that are abandoning the traditional bail system for those awaiting trial and replace it with an assessment of a person’s danger to society or flight risk. Senate Bill 10, now pending in the legislature, would be a huge step forward for the state and make an enormous difference in people’s lives. It also is essential in light of a recent decision of the California Court of Appeal declaring California’s bail system to be unconstitutional.
The Eighth Amendment to the United States Constitution prohibits excessive bail. Additionally, California law creates a constitutional right to bail except when the defendant is charged with a capital crime, or a felony involving violence or a sex offense, or when a court finds that a person’s release likely would result in bodily harm to another.
This is not a new problem. Forty years ago, then-Gov. Jerry Brown said that bail is a ‘tax on poor people in California.’
Defendants in California are often required to pay cash bail in order to be released from custody. This is to help ensure that the defendant will appear for court hearings. A defendant can pay the bail required or may post bail using a bail bond, which entails paying a smaller amount with a bail bonds company paying the rest and charging the defendant a significant amount to do this.
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The reality is that those with money quickly can get out of jail, but those who are too poor to afford bail or the bond are left to remain incarcerated. During this time, they can lose their jobs and their families can suffer greatly. Personal wealth is often the only thing that determines who is free while awaiting trial and who remains in jail.
The median bail in California is $50,000, five times the national average. Such high bail, that often cannot be met, has great financial costs to the state. It costs about $114 per day to house a person in jail in California and on average there are 72,500 people in jail each day. Nor can it be assumed that such persons are guilty, let alone dangerous. One in three felony arrests does not result in a conviction and only 14 percent of felony convictions in California result in a prison sentence.
The current cash bail system imprisons tens of thousands of people each year before they are convicted of any crime because they cannot afford to get out of jail. It punishes people just for being poor. There also is a racially discriminatory impact: African-American men are less likely to be released on their own recognizance and their bail amounts are 35 percent higher than for white men.
In January, in In re Humphrey, the California Court of Appeal declared the California bail system unconstitutional. It held that “if the court concludes that an amount of bail the defendant is unable to pay is required to ensure his or her future court appearances, it may impose that amount only upon a determination by clear and convincing evidence that no less restrictive alternative will satisfy that purpose.” The court concluded by declaring that “legislation is desperately needed.”
SB 10, which has passed the California Senate and is awaiting action in the Assembly, would do that. If enacted, the law would require that a court in each case evaluate whether a defendant can be safely released while awaiting trial and if so, what conditions should be set to best ensure that he or she will appear in court.
Other states have shown that such an approach can work well. For example, Kentucky has eliminated traditional bail and releases 70 percent of its defendants before trial without money bail. Eighty-nine percent of those released appear for court proceedings and 92 percent are not arrested while on pretrial release. By contrast, California with its money bail system fares far worse in having defendants appear in court.
SB 10 also would require the availability of pretrial services. Experience in California shows that they work. Santa Clara County’s successful pretrial program has helped more than 95 percent of those released make all scheduled court appearances, and 99 percent stay arrest-free while awaiting trial.
This is not a new problem. Forty years ago, then-Gov. Jerry Brown said that bail is a “tax on poor people in California. Thousands and thousands of people languish in the jails of this state even though they have been convicted of no crime. Their only crime is that they cannot make the bail that our present law requires.”
Reform is long overdue and SB 10 is a crucial step forward.
Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. He can be reached at firstname.lastname@example.org.