Criminal Justice

Bail System Is Next Target of California Criminal Justice Reform Efforts

Looking to change the 'money bail' system.

|

California has long been known as a law-and-order state, particularly following the crime spikes of the 1980s. The state passed the toughest "three strikes" law in the nation and state officials from both parties often have argued over who would be tougher on crime.

But in recent years, a variety of criminal-justice reforms have been pushing the pendulum back in the other direction, albeit in a relatively quiet way. In 2014, California voters approved Proposition 47, which reduced some crimes from felonies to misdemeanors. Furthermore, Gov. Jerry Brown succeeded in implementing his "realignment" plan that moved many state prisoners to county jails.

Crime has gone up in major California cities since then and it's not clear how much those measures contributed to the problem. But it doesn't appear the recent uptick has slowed the push for reform.

In the Nov. 8 general election, voters rejected an effort to repeal the death penalty and, by a close margin, appear to have approved a measure designed to speed up executions. Nevertheless, voters also approved Proposition 57 by a wide margin. As the Legislative Analyst's Office explains, the measure will "increase the number of inmates eligible for parole consideration" and make "changes to state law to require that youths have a hearing in juvenile court before they can be transferred to adult court." The marijuana-legalization measure voters also approved would enable judges to expunge some people's marijuana convictions.

The ballot box isn't the only place where reform is moving forward. When the legislature reconvenes in December, some legislators will almost certainly introduce bills that would reform the state's system of "money bail." It's part of a nationwide reform movement headed by groups such as the American Civil Liberties Union.

Many are unfamiliar with the system by which criminal defendants post a bond that allows them to avoid jail time as their case winds its way through the system. A judge will set a bail amount that reflects the severity of the alleged crime and the defendant's perceived flight risk. The defendant can post the full amount, which would be forfeited if he or she doesn't show up at the appointed court date. Those who lack the resources also can go to a bail bonds company and pay a nonrefundable percentage (commonly 10 percent) of the bail. The bail bondsman posts the full amount and assumes liability to assure the defendant shows up for trial.

The bail bonds industry argues the system works well as it is designed. "When it comes to guaranteeing appearance at court, surety bail outperforms every form of public sector pretrial release and own recognizance release as well," according to the American Bail Coalition. The group, supported by bail-bonds companies, argues the current system also offers a cost-effective approach that costs the courts nothing for to supervise 2 million released defendants each year. Bail defenders also point to the taxes paid by the bail industry— and cite studies showing cost savings to counties.

But critics of the system, including the chief justice of the California Supreme Court, have raised some concerns. "Over time 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," said Chief Justice Tani Cantil-Sakauye, in a March 2016 editorial board meeting with the Sacramento Bee. The problem, as the Bee and others have raised, is that poor people often don't have the financial wherewithal to post bail. That forces them to stay in jail while wealthier people get to go home on their own recognizance and await trial. The chief justice has created a task force to review the issue.

Critics say the bail situation also encourages poor people to accept plea bargains, given that months in jail—and our court system moves very slowly—could cause their lives to collapse. If they are in jail rather than working, they lose their apartments and their possessions. Their kids are often taken by Child Protective Services. It's a problem not just for the poor people who are affected, but also for the state's perpetually overcrowded jail system. More than 60 percent of people in California jails have not yet been sentenced for any crime.

As the nonpartisan Public Policy Institute of California reports: "From 2000 to 2009 (the latest comprehensive data available for felony cases), California's large urban counties relied on pretrial detention to a much greater extent than did large urban counties elsewhere in the United States. … Part of the difference in detention rates may be attributed to California's higher bail amounts. The median bail amount in California ($50,000) is more than five times the median amount in the rest of the nation (less than $10,000). Research has demonstrated that pretrial release rates generally decline as bail amounts increase."

In July, some Democratic state legislators held discussions in Oakland on the matter. San Francisco District Attorney George Gascón said that "at least 29 jurisdictions have developed 'risk-assessment' models, which allow court and pretrial staff to use data and other evidence to determine whether a person should be released," according to a news report. That's a likely model for coming proposals: shifting toward a system based more on judicial risk assessments than on the ability to post a bond. Assemblyman Rob Bonta, D-Oakland, announced his intent to introduce legislation when the Legislature is back in session.

The U.S. Justice Department also has weighed in on behalf of bail reform in a Georgia case. The department argues that "bail practices that incarcerate indigent individuals before trial solely because of their inability to pay for their release" violate the 14th Amendment of the U.S. Constitution. However, a U.S. district judge rejected a similar argument in a Sacramento County case.

"The state's interest in ensuring criminal defendants appear for trial dates is a legitimate one, and detaining individuals before their arraignment is rationally related to that legitimate interest," U.S. District Judge Troy Nunley wrote last month in the case. As the San Francisco Chronicle reported, "Nunley refused, at least for now, to dismiss a claim that the bail system is unfairly punitive." Nunley is an appointee of President Barack Obama.

Other similar cases are moving forward across the country, including in San Francisco. There, Public Defender Jeff Adachi commissioned a study finding that black inmates are more likely to be kept in jail awaiting trial than their white inmates facing similar charges. Clearly, this issue will be heating up in the coming years, with a new Republican administration throwing more uncertainty into the situation, given the role the Obama Justice Department has played in the matter.

Critics also note the current system isn't cost free, and that some states have moved to a risk-assessment system. "Risk assessment detention not only stems some of the unjustified inequalities on the impoverished but it also has proven to save the state money and actually prevent further crime by trying to keep the accused employed and out of trouble," argues my R Street Institute colleague, Arthur Rizer, director of criminal justice policy. The current system, he adds, ends up "bloating our already bloated jails."

Not all reformers look to eliminate money bail. Various compromises could emerge, including measures that eliminate bail for certain cases, or efforts to create easier ways for poor defendants to afford bonds. This is an emerging reform movement, so we've yet to see the kind of compromises that might emerge in the California Legislature.

Advertisement

NEXT: Matt Welch and Nick Gillespie Talking Trump on Kennedy Tonight at 8 P.M.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. My solution to bail is the same for warrants and court cases in general: loser pays. If someone stuck in jail loses their job, home, car, etc, then wins their case, the prosecutor pays all that, probably including some forward expenses too while looking for a job, house, etc.

    What I especially like is it eliminates all the crappy government rules to emulate markets, just as Obamacare clobbers markets and then throws in thousand of laws and regulations to emulate what it destroyed.

    With warrants especially, it would be wonderful. All parties would write their own warrants, which would have to be relevant, consistent, understandable, etc, and contestable. Supposing the appeals pass muster on it, you then get to execute it, which is also subject to complaints for being executed incorrectly etc. Any errors in execution rebound immediately on the executor. When the case is over, all warrants by the losing party rebound on the loser. Rebounding means basically that the warrant target get to do the same thing to the executor, which in practice would almost always just be money in lieu of action.

    It’s the accountability that I like so much. A humiliating or abusive arrest, publicity, anything which goes wrong costs you directly. It’s self-correcting like any good market. And because loser pays, it’s easier for poor people to get a lawyer if they seem innocent, because the government pays up afterwards; the better the case, the more likely to get a good lawyer.

    1. We probably don’t want judges and prosecutors paying acquitted defendant’s costs but I agree that accountability for judges and prosecutors needs improvement.

      I advocate everyone has to have a jury trial and watch prosecutor drops all charges that they don’t think they can win. Combined with speedy trial, this would force prosecutors to really decide which cases are worth pursuing.

      Really low bail amounts for first release serves multiple purposes. Jails could be smaller because mainly misdemeanor offenders serving sentences are the only occupants and people who did something stupid, should pay for their mistake and they cannot do that if they lose their job.

      1. Start earning $90/hourly for working online from your home for few hours each day… Get regular payment on a weekly basis… All you need is a computer, internet connection and a litte free time.. Read More Here… http://www.Trends88.Com

      2. No, you’re doing the same, trying to emulate market effects while hindering markets.

        If you make them accountable, personally, this shit will stop real fast.

        This isn’t some draconian hell where the slightest mistake could cost you your house. Juries will control the rebound, and if something is a real close call, the rebound will be similarly small.

        If a grocer accuses someone of stealing an apple, the proper response is to pay up on the spot, admit guilt, go away. But if you fight it and are found guilty, you owe all those court costs.

        Similarly, if you get a warrant to search someone’s house for a stolen TV and don’t find it, he gets to search your house, but will much more likely settle for a little money if you were quick and decent. If you were a pig about it, throwing stuff all over, doing it at 4 in the morning, pulling guns on kids and shooting dogs, guess what, he could do the same, but will much more likely settle for lots of money. The moral is clear — don’t be an asshole.

  2. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
    -VIII Amendment

    We should move to cheap cash bail, bail bond or property bond. If you fail to show for court, you can be denied bail or the bail is current levels.

    Keeping people in jail awaiting trial around the USA for low amounts like $1000 is actually resulting in more plea bargains. The prosecutors like this consequence of high bail because combined with stacking charges, prosecutors can rack up very high conviction rates without having to actually prove their case beyond a reasonable doubt.

  3. Death as thought vapor strained through the sieve of consciousness;
    It exists momentarily and reincarnates only at the temporal beckon of next portal
    desiring lock and end
    Once this climax of living exhumes its hopes, plans, prints, and fantasies it collapses
    into a bouquet of stardust
    and dream trails traveling deep into
    the murky great Nowhere

  4. “In recent years, a variety of criminal-justice reforms have been pushing the pendulum back in the other direction, albeit in a relatively quiet way . . . . Gov. Jerry Brown succeeded in implementing his “realignment” plan that moved many state prisoners to county jails.

    Crime has gone up in major California cities since then and it’s not clear how much those measures contributed to the problem. But it doesn’t appear the recent uptick has slowed the push for reform.”

    We should be clear about Brown moving state prisoners to county jails.

    That was because the federal courts stepped in and ruled that the overcrowding in California’s prisons was so bad it amounted to cruel and unusual punishment.

    Those rulings were made more than a decade ago, and California still hadn’t adequately addressed the situation. So the federal court came after California again. So they stated doing an early release program–and it wasn’t just non-violent offenders they released. They released wife-beaters, date-rapists, arsonists, etc.

    Meanwhile, Sacramento is so pathetic that for all those years since the original ruling, the legislature still hasn’t found the money to build any new prisons. They have the money to commit to California’s outrageously generous state pension plan and to fund a bullet train to nowhere, but they can’t afford to build new prisons to keep violent, convicted felons in prison.

    Moving prisoners to county jails was not “reform”. It’s the result of incompetence.

  5. “For example, the state has ordered parole hearings for longtime inmates convicted of committing violent crimes before they turned 23, requiring authorities to consider anew whether immaturity at the time of the inmates’ offense argues for their release.

    Meanwhile, Gov. Jerry Brown (D) has approved parole for roughly 2,300 lifers convicted of murder and about 450 lifers sentenced for lesser offenses ? a revolution in a state that released only two lifers during former governor Gray Davis’s entire four-year term.

    https://www.washingtonpost.com/national/ an-unprecedented-experiment- in-mass-forgiveness/ 2016/02/08/45899f9c-a059-1 1e5-a3c5-c77f2cc5a43c_ story.html

    They segregate lifers in prison because they’re too dangerous to mix with the general population.

    The general prison population, that is. Releasing convicted murderers and gangbangers who were so far gone by the time they were 23 that they killed somebody? They’re ready to mix with the rest of us at the mall.

    1. I feel sorry for you Libertarians in Taxifornia. Governor Moonbeam is speeding along your state’s utter devastation.

      You only hope is to move away. Too many nitwits voting for crazy shit there.

  6. “But critics of the system, including the chief justice of the California Supreme Court, have raised some concerns. “Over time 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,” said Chief Justice Tani Cantil-Sakauye, in a March 2016 editorial board meeting with the Sacramento Bee. The problem, as the Bee and others have raised, is that poor people often don’t have the financial wherewithal to post bail. That forces them to stay in jail while wealthier people get to go home on their own recognizance and await trial.”

    There’s only one good reason to quote social justice warriors–and that’s to point at them and laugh.

    I have never seen an article at Hit & Run that was more full of horseshit.

    If people are being held without bail for too long, then the solution isn’t to do away with the bail system.

    If bail is excessive, that’s unconstitutional.

    If trials are not speedy, that’s unconstitutional.

    If people are being indicted with insufficient evidence, that’s unconstitutional.

    You don’t fix those problems by highlighting the fact that life isn’t fair because some people are rich.

    Jesus Christ.

    1. I agree. Reading the article I thought many of the points were not related to the bail system.

      “Part of the difference in detention rates may be attributed to California’s higher bail amounts. The median bail amount in California ($50,000) is more than five times the median amount in the rest of the nation (less than $10,000).”

      The questions should be:
      Why are California’s bails 5 times higher than the rest of the nation? Are California criminals 5 times more affluent than the rest of the nations criminals? What drove up the price of the bails? What can be done to reduce the amount to a more comparable level? How does the price of the bail imply that the process of bail bonding is inadequate?

      1. Bail is not supposed to be based on income or comparability to other locations. It is supposed to be reasonable and everyone is supposed to be offered it. If people are saying it is too high, then it is probably unreasonable.

        I agree that this article could have been more in depth regarding the bail schemes. Bail schedules and procedures would infuriate some of you. The biggest lobby against lower bails are the bail bond companies and “tough on crime” politicians and bureaucrats.

        1. My post probably didn’t make my point clear. The article is bemoaning the bail system in California and using different examples of where the system needs reform or an entirely new system like risk-assessment. It seemed to me that many of the examples were not directly caused by a bail system, just as Ken pointed out. My example using the comparatively high cost of the average California bail was meant to show that having a bail system doesn’t make it necessarily expensive. So what is driving the cost in California compared to other states?

          If Mr. Greenhut wants to make a case that the bail bond system needs reform, that’s fine, but he should focus on the drivers of the problems.

  7. What we need is to make bail irrelevant by simplifying the law so someone doesn’t have to wait for more than an hour or so to have a trial & get a decision.

    1. Simple flow chart, anybody could follow it.

      Did you do it? Yes: go to bottom. No:

      Who says you did? Nobody: decision. Somebody:

      Why should I believe you? Why should I believe you? Decision.

      Bottom if did it: What’s your excuse for doing it? Enough/not enough: decision.

      If Wapner can do that in mins. on TV, why can’t everyone? Instead of 12 jurors, make them each a judge for an hour. Boom, no waiting, cases cleared, everybody’s happy.

      And of course the rest of the law should be simplified by making fewer things illegal.

      1. Wow! You completely left out presumption of innocence. I mean completely left it out.

        1. That’s part of “decision.” I didn’t specify anything about how you decide, because that’s not holding anything up as is.

  8. RE: Bail System Is Next Target of California Criminal Justice Reform Efforts
    Looking to change the ‘money bail’ system.

    One has to wonder if any of these idiot judges know what the words “excessive bail” means.

  9. until I looked at the paycheck saying $4730 , I did not believe that…my… brother woz like actualy bringing in money part time from there computar. . there friend brother started doing this for less than 7 months and resently paid for the morgage on there home and bought a new Cadillac …….

    >>>>>>>>>http://www.centerpay70.com

  10. I get Paid over ?80 per hour working from home with 2 kids at house. I Never thought I would be able to do it but my best friend earns over ?9185 a month doing this and she convinced me to try. The potential with this is endless.

    ??..>>>>>> http://www.jobmax6.com

  11. I’ve made $64,000 so far this year working online and I’m a full time student. Im using an online business opportunity I heard about and I’ve made such great money. It’s really user friendly and I’m just so happy that I found out about it. Heres what I do,
    ?
    —————->>>> http://www.Max43.com?
    ?

  12. until I looked at the paycheck saying $4730 , I did not believe that…my… brother woz like actualy bringing in money part time from there computar. . there friend brother started doing this for less than 7 months and resently paid for the morgage on there home and bought a new Cadillac …….

    >>>>>>>>> http://www.centerpay70.com

  13. until I looked at the paycheck saying $4730 , I did not believe that…my… brother woz like actualy bringing in money part time from there computar. . there friend brother started doing this for less than 7 months and resently paid for the morgage on there home and bought a new Cadillac …….

    >>>>>>>>>http://www.centerpay70.com

  14. Facebook gives you a great opportunity to earn 98652$ at your home.If you are some intelligent you makemany more Dollars.I am also earning many more, my relatives wondered to see how i settle my Life in few days thank GOD to you for this…You can also make cash i never tell alie you should check this I am sure you shocked to see this amazing offer…I’m Loving it!!!!
    ????????> http://www.factoryofincome.com

  15. Of course the bail bonds people support the system the way it is because of the amount of profit they make….10% right off the top of say $50k is $5k……and they dont have to put up a dime unless the defendant runs…most dont and those who do get caught…Bondsmen cant lose unless the laws are changed……Then they lose money…So no they dont want it to change….Courts dont want change the money is to good….Poor people fund everything to do with local courts with all the big fines…Its a money racket as usual….And once they put you in jail they keep fleecing you with the company store and using the pay phone .Now I know why they call it a pay phone and they use jaypal for the inmates money and they charge some nice fees there ..Then you add for profit prisons….Its nothing but a big racket corrupted to the point it has become the norm.

Please to post comments

Comments are closed.