Bail, the next frontier of criminal justice reform

A bail bonds sign hangs on the side of a building in New York.
A bail bonds sign hangs on the side of a building in New York. Associated Press file

Every day in California, thousands of people get arrested. Some are guilty. Some are innocent. Many are poor.

Often, they end up in crowded county jails worrying about getting fired for missing work and wondering who is going to take care of their children in their absence.

When they finally get to see a judge, they may find themselves with a bail of $50,000 – the median for California and five times higher than the median bail in most other states.

A lot of them don’t have $50,000 and so they must make a decision: Scrape together thousands of dollars and go into debt to pay a bail bonds company. Or take a plea deal and accept blame for a crime that they may not have committed just to get out of jail faster. Or stay in jail and let their lives unravel while the criminal justice system runs its course.

That isn’t much of a choice. In a matter of decades, bail has gone from a tool that compelled people accused of crimes to appear in court to one that pre-emptively punishes the poor and blindly incarcerates defendants who too often pose no threat to the public.

Thankfully, many states, including California, are starting to rethink the use of bail. No one is talking about eliminating it completely, just drastically reducing how often it is used – and it is used a lot in this state. It’s a movement that’s long overdue and, for many reasons, shouldn’t slow down now.

This isn’t bleeding heart stuff. It’s common sense. And it’s coming from Chief Justice Tani Cantil-Sakauye, who spent years as a deputy district attorney and trial judge in Sacramento.

“Over time,” she recently told The Sacramento Bee’s editorial board, “the discussion about bail [has become]: Does it really serve its purpose of keeping people safe? Because if you’re wealthy and you commit a heinous crime, you can make bail.”

Fueled by a wave of criminal justice reform, a multistate task force is examining the effects of using bail. The goal is to come up with best practices that can be rolled out in California and other states through the Conference of Chief Justices and Conference of State Court Administrators.

There have been lawsuits, including one filed in San Francisco in October. And in an unprecedented step, the U.S. Department of Justice warned this month that “any bail practices that result in incarceration based on poverty violate the 14th Amendment.”

Sixty-two percent of the people sitting in the state’s county jails have not been convicted of a crime.

Meanwhile, a handful of other cities and states, including Arizona and Kentucky, already have reformed their pretrial court systems to the point that bail is rarely used. Instead, they rely on supervised release programs after they assess the risk of letting each defendant go until trial. Having a steady job, for example, lowers the risk. In California, about a dozen counties are experimenting with similar programs.

Still, dismantling the bail system courts political fallout, particularly in California.

Most defendants who secure financial releases here do so through bail bonds – a practice that has given rise to a massive and powerful bail bonds industry, evident in the sea of neon signs surrounding any county jail. Attempts to wean the state from it surely will be met with a backlash of lobbying at the Capitol.

Yet California must sustain the push for reform, not least for moral reasons.

Sixty-two percent of the people sitting in the state’s county jails have not been convicted of a crime, according to the Public Policy Institute of California. They merely have been accused and are there awaiting trial. That means we are jailing tens of thousands of possibly innocent people for days and weeks and even months at a time.

There is also the issue of fairness. Wealthy people don’t have to bother with bail – or the debt that can come with it. They can write a check or use their house as collateral, and remain free until their cases are over.

Meanwhile, poor people who get stuck in jail often come out worse than when they went in – even if they are found not guilty. Men and women who are already living on the edge, paycheck-to-paycheck, can’t handle the kind of disruption that comes with a lengthy stint behind bars or the debt that comes with bail.

The effect can be destabilizing. People lose their jobs, lose their apartments, lose their children to Child Protective Services. That stresses not only families, but also the social safety net.

And if they happen to be low-risk offenders when they get to jail, the longer they remain there, the greater the chance they will come out as high-risk offenders. Jail time is corrosive for the uninitiated and can increase the risk of recidivism, studies show.

This is particularly true for people who are innocent but plead guilty just to get out of jail, saddling themselves with a criminal record for the sake of expedience.

“I’ve seen it. A time served offer on a custody defendant on a low-level charge, all they think about is, ‘Do I get out today? Can I get out today?’ Cantil-Sakauye said. “We have to take a look at whether we are contributing to the problem.”

But the biggest reason California, specifically, must continue to push for bail reform is the ongoing fallout from public safety realignment. Since it began in 2011, shifting control of some state prisoners to counties, jail overcrowding has been an urgent issue.

Before realignment, the maximum stay at a county jail was one year; now there’s no limit. Some inmates are serving sentences of five or more years. Proposition 47, which downgraded some felonies to misdemeanors, has helped. But jail capacity will continue to be an issue, particularly if counties continue to detain thousands and thousands of people waiting for trial.

There are the indignities of being poor that are out of one’s control. And then there are the indignities of being poor that government can control. Bail is one of the latter, and California is uniquely positioned to move the needle on this systemic wrong.