The debate over bail reform in California is heating up. Two bills are currently making their way through the state legislature seek to end the state’s money bail system. The proposed reforms have generated much interest and controversy from those on both sides of the political spectrum.

As a former federal prosecutor, I am watching with interest and curiosity as California's debate unfolds. Money bail was eliminated at the federal level more than fifty years ago. The federal system generally presumes that a defendant will be released on personal recognizance, absent a showing that he or she poses a flight risk or a danger to the community. A judge has the option to impose a variety of pretrial release conditions or detain a defendant, if warranted. But holding a defendant in custody solely because he or she cannot post bail is prohibited.

California would do well to look to the federal system for a reasonable alternative to money bail.

The Federal Bail System

In 1964, United States Attorney General Robert Kennedy told the Senate Judiciary Committee, “[B]ail has become a vehicle for systematic injustice. Every year in this country, thousands of persons are kept in jail for weeks and even months following arrest. They are not yet proven guilty. They may be no more likely to flee than you or I. But, nonetheless, most of them must stay in jail because, to be blunt, they cannot afford to pay for their freedom.” (1)

Under Kennedy’s stewardship, Congress passed the Criminal Justice Act of 1964 and the Bail Reform Act of 1966. The legislation transformed the federal bail system, doing away with money bail almost entirely. It required all federal defendants charged with non-capital offenses to be released on their own recognizance prior to trial. If a defendant posed a flight risk, the Act permitted the court to impose the “least restrictive” conditions, such as travel limitations or an appearance bond, that would reasonably assure the defendant’s presence as required.

In the early 1980s, Congress, concerned about rising crime rates, made sweeping changes to the bail system. In addition to considering a defendant’s risk of flight, the Bail Reform Act of 1984 authorized judicial officers to consider the danger a defendant poses to an individual or the community. The Act provided courts with four options: (1) release the arrestee on his or her own recognizance, (2) release the arrestee subject to conditions, (3) temporarily detain the arrestee, or (4) detain the arrestee. True to its 1966 roots, however, the 1984 Act reinforced the prohibition against money bail; it explicitly prohibited federal courts from imposing a financial condition that would result in a defendant’s pretrial detention. 18 U.S.C. § 1342

Congress recognized that courts need information in order to make an appropriate decision on a defendant’s pretrial status. The Pretrial Services Act of 1982 created a network of agencies administered by the federal courts and charged with “[c]ollect[ing], verif[ing], and report[ing] to the judicial officer . . . information pertaining to the pretrial release of each individual charged with an offense.” Pretrial service agents interview the defendant and gather relevant background information, such as criminal history and employment history. Pretrial services then produces a report to judges and the parties at the time the pretrial release decision is made. 18 U.S.C. § 3154

Today, when a defendant is arrested for a federal offense, he or she is brought before a federal magistrate judge the day of arrest or shortly thereafter for an initial hearing on the case. At the initial hearing, the court informs the defendant of the charges, discusses legal representation, and determines whether the defendant will be held in custody or released until trial. The touchstone of the analysis is whether the defendant poses a risk of flight or a threat to the safety of the community. Informed by the report provided by pretrial services and the arguments of both parties, the court chooses the least restrictive means necessary to ensure the defendant’s appearance and protect public safety.

California’s Current System

California’s system stands in stark contrast to its federal counterpart. The California Constitution guarantees individuals who have been arrested the right to be released “on bail by sufficient sureties,” except for the most serious crimes and offenses involving serious threats to safety. Cal. Const. art. I, § 12

The arrestee is entitled to an arraignment within 48 hours of arrest. Cal. Penal Code § 825(a) At the arraignment, a judge decides whether to release the defendant on his or her own recognizance or set a monetary bail amount. In determining whether bail is appropriate and at what level, the court must consider “the protection of the public, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at the trial or hearing of the case.” Cal. Penal Code § 1275

Every Superior Court in California sets its own uniform, county-wide bail schedule each year. The bail schedule lists presumptive bail amounts for both felony and misdemeanor offenses. Judges have the discretion to increase or decrease the bail if they believe a different amount would be sufficient to ensure the defendant’s appearance and protect any victims. Bail cannot be set with the goal of punishing an individual. However, bail is not considered excessive merely because the defendant cannot afford it. Cal. Penal Code § 1269, Cal. Const. art. 1

If a court orders money bail, defendants with financial means can be released pending trial immediately by paying the entire bail amount in cash or posting real property worth twice the bail amount. More commonly, however, defendants gain their release by obtaining a bail bond from a commercial bail agent. The defendant pays the bail agent a nonrefundable fee—usually about ten percent of the bail amount—either up front or in installments. The defendant is then released and, if he or she fails to appear as required, the bail agent must pay the court the full bail amount. In that case, the bail agent often seeks to recover the full bail amount from the defendant or his or her co-signers, who are often family and friends.

The problems with this system are manifest. For one, median bail in California is $50,000. (2) To post a bond, an arrestee would have to pay a bail agent $5,000—well beyond the reach of many low-income defendants. Consequently, poor defendants end up spending weeks or months in jail awaiting trial. According to the Public Policy Institute of California, more than 62% of county jail inmates—about 46,000 people—are awaiting trial or sentencing.

The burden on taxpayers is astronomical. At an average cost of $114 per day per inmate, Californians are spending more than $5 million per day to incarcerate people who are eligible for bail. And that is only a fraction of the true cost. A recent study out of Washington University in St. Louis put a price tag on the societal toll of money bail: “’For every dollar in corrections spending, there’s another 10 dollars of other types of costs to families, children and communities’—including visitation costs, moving and/or eviction costs, child welfare costs, lost earnings, loss of social ties leading to recidivism, increased crime rates among children with incarcerated parents, and adverse health effects from incarceration—‘that nobody sees because it doesn’t end up on a state budget.’” (3)

Beyond the fiscal impact, money bail calls into question the integrity of the criminal justice system as a whole. Profound racial disparities exist in jail and bail practices—in San Francisco, for example, blacks are nine times more likely to be booked into jail than whites. (4) And innocent defendants may feel compelled to plead guilty just to get out of jail.

The California Money Bail Reform Act

To address the growing concerns about the fairness of money bail, the California Legislature is currently considering the California Money Bail Reform Act. Made up of Senate Bill 10 and its identical companion, Assembly Bill 42, this measure would end the use of money bail schedules in California and instead require county courts to conduct a pretrial risk assessment on each defendant. (5) A court could then release the defendant with or without conditions or require monetary bail if necessary. Certain very serious crimes would be exempt, and prosecutors could file a motion seeking pretrial detention in other serious cases.

Supporters of the measure argue that it will remedy the inherent injustice of the money bail system, which disproportionately harms low-income defendants. “[Money bail] is theft on the poor people in our community,” Assemblywoman Lorena Gonzalez Fletcher (D-San Diego) said. “It is shocking and wrong, and it is time that we do something.” (6) Supporters of the measure include the American Civil Liberties Union of California, the Ella Baker Center for Human Rights, and the California Public Defenders Association, among others. (7)

Opponents of the measure argue that it is soft on crime and would impose high costs on the county criminal justice system. Counties would be responsible for the creation of new pretrial services agencies to evaluate defendants, and defendants who were released and committed new crimes could lead to liability for the county. (8) Bail bondsman companies are strong opponents, arguing to preserve the money bail system. (9)

Whether the Legislature will pass the bill remains to be seen. The Senate version, SB 10, passed the Senate on May 31, 2017, with a vote of 25-11 and was sent to the Assembly. The next day, the Assembly voted on its parallel provision, AB 42, which failed to pass, with 36 lawmakers in favor and 37 opposed. (10) But this is not the end of the road for the California Money Bail Reform Act: The Assembly still has to vote on SB 10. While the two bills are identical, the one vote loss by AB 42 has left bail reform advocates vowing “to work twice as hard” to get SB 10 passed by the Assembly. (11)

Conclusion

The central problems that AB 42 seeks to fix are the very ones that Kennedy identified more than fifty years ago: inequities based on a defendant’s financial means, significant monetary and human costs of incarceration, increased likelihood of conviction for pretrial detainees, the power of private bail bondsmen to decide who can meet bail and who cannot.

California’s bail reform bill borrows some key concepts from the federal system designed to address those issues. It requires that counties establish pretrial services agencies, it eliminates bail schedules in favor of individualized risk assessments, and it adopts the federal prohibition on setting bail that leads to pretrial detention solely because a defendant cannot pay.

To be sure, the federal model is not perfect. Pretrial service agencies have only a few days at most to gather sufficient information for a court to assess a defendant’s risk of flight and dangerousness. This is a challenging task. Even with thorough background information, predicting a defendant’s future behavior with one hundred percent accuracy is unrealistic; human nature is unpredictable. And racial and economic disparities persist. According to the U.S. Department of Justice Bureau of Justice Statistics, between 2008 and 2010, 65% of white defendants were released pretrial compared to 43% of blacks and 20% of Latinos. In addition, federal courts may require defendants to sign secured bonds to ensure their appearance in court. Secured bonds must be backed by collateral, such as real property, which would present a greater hurdle for low-income defendants. (12)

Even so, by doing away with money bail, establishing a general presumption of release on personal recognizance, and providing judges with guidelines and support for making an informed pretrial release decision, the federal system has managed to strike a workable balance between protecting public safety and a defendant’s Constitutional rights. In seeking to move closer to the federal model, California is on the right track.

The author thanks Emmaline Campbell for her invaluable assistance in writing this article.
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(1) “Testimony by Attorney General Robert F. Kennedy on Bail Legislation Before the Subcommittees of Constitutional Rights and Improvements in the Judicial Machinery of the Senate Judiciary Committee,” p. 1, August 4, 1964.

(2) Jim Crogan, “Defining Moment: Will California End Its Money Bail System?” Salon, April 21, 2017. Subsequent statistics in this and the following paragraph are from the same article. Available at Salon.

(3) “Santa Clara County Bail and Release Work Group Consensus Report,” citing Kristen Taketa, “Incarceration in the U.S. Costs More Than $1 Trillion a Year, Washington University Study Claims,” St. Louis Post-Dispatch, September 10, 2016. Available at Post-Dispatch Article.

(4) Human Rights Watch, “’Not in it for Justice:’ How California’s Pretrial Detention and Bail System Unfairly Punishes Poor People.” Available at HRW Report.

(5) California Legislative Information, “SB-10: Pretrial Release.” Available at SB10 (last visited June 2, 2017).

(6) Jazmine Ulloa, “Legislation to Overhaul Bail Reform in California Hits a Hurdle in Assembly,” Los Angeles Times, June 1, 2017. Available at LATimes.

(7) ACLU-San Diego & Imperial Counties, “Advocates Vow to Double Down on Efforts to Reform California’s Money Bail System,” June 2, 2017. Available at ACLU.

(8) Ulloa , supra note 6.

(9) Jazmine Ulloa, “Lawmakers Discuss Reform for California's Bail System,” Los Angeles Times, July 30, 2016. Available at LATimes.

(10) Ulloa, supra note 6.

(11) ACLU-SanDiego & Imperial Counties, supra note 7.

(12) “Pretrial Release and Misconduct in Federal District Courts, 2008-2010.” Available at
Pretrial Release Report.