Criminal Justice

California Legislators Look to Reform Bail System to Stop Punishing the Poor

Effort to stop using money to determine who can go free.


Nikolay Mamluke /

California finally managed to reform its asset forfeiture laws to make it tougher for police to use the state's poorer citizens as a piggy bank earlier this year. Will the state's residents see reform to bail regulations that keep poor people behind bars even if they aren't at risk of continued criminal behavior or flight?

A pair of Democratic California state legislators, Rob Bonta (in the Assembly) and Bob Hertzberg (in the state Senate), are hoping 2017 will be the year. The two announced this morning that they'll be introducing legislation in the state intended to try to reduce the number of people who are being held in California's jail system not because they're threats, but because they're unable to pay bail.

The Los Angeles Times explains, with Bonta's assistance, how that ultimately works out in California:

Under state law, bail is set when a person is arrested according to a county fee schedule and depends on the gravity of the alleged crime. Offenders must post the amount upfront, or pay a 10% fee to a bond company, before they are released.

Those who can't afford to do so either can remain incarcerated up to an additional 48 hours before they are formally charged and arraigned. A judge then sets the conditions for release before trial, weighing such factors as whether the defendants pose a flight risk or are a threat to their community.

Those conditions typically include bail, and lawyers and legal experts say the rules on how high that monetary amount is set vary by city and county, often allowing courts to keep people in jail based on their inability to pay their fees.

"We have to make the criminal justice system more just," Bonta said. "When you have a system that is making decisions simply and solely based on a person's wealth, something is fundamentally wrong and that is simply not acceptable."

The stats provided by the legislators show that California has a pretrial detention rate higher than many other states—63 percent, or 46,000 people. This comes at a cost both to the counties (More than $4 million annually) and to the prisoners (who, we will remind, have merely been charged with a crime and not convicted).

The American Civil Liberties Union (ACLU) in California and several other criminal justice reform groups are helping attempt to push a bill forward. An ACLU fact sheet notes that 80 percent of jail deaths in the state are those in pretrial custody, and of those, one-quarter are suicides. They also note that pretrial detention increases the likelihood that defendants will plead guilty (some will likely point out this is a feature not a bug).

Hertzberg's office sent Reason a media package of releases and research studies that detail the consequences of pretrial detention. And while they've included wording of a bail reform bill for the state, what is provided so far does not actually reform bail. The draft bill they've sent, after an introduction discussing the problems with excessive pretrial detention, concludes "It is the intent of the Legislature to enact legislation that would safely reduce the number of people detained pretrial, while addressing racial and economic disparities in the pretrial system, and to ensure that people are not held in pretrial detention simply because of their inability to afford money bail."

What that ultimately means is going to have to be negotiated. In New Mexico, voters recently passed some bail reform. We know that initially defense attorneys in the state initially supported legislation to reform bail so that it couldn't be denied simply due to a person's inability to pay. But after the wording of the proposed constitutional amendment was changed to give the court the authority to decide whether or not a defendant was truly unable to pay, the state's ACLU chapter and defense attorneys group dropped their support. Then the state's bail bond association went from opposing the legislation to supporting it. So ultimately bail reformers will have to keep an eye on New Mexico to see if the new rules actually result in fewer defendants forced into pre-trial detention.

California will no doubt see similar resistance from those with a financial stake in maintaining the status quo. Keep a close eye on what happens to the legislation after it's introduced.

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  1. “The only poor people I want to hear about are the people who tend to my pores at the spa. Just throw them in the robot looney bin and let’s go.”

  2. Golden State Democrats actually acting for the little guy over the state twice? I’ll see that when I believe it.

  3. A report on the local California NPR station this morning interviewed a bail bond industry spokesman who said this was a bad idea because people need to be held financially against their flight.

    The reporter did not respond with the obvious, “So what you are saying is that bail levels should be one tenth of what they are today?”

    1. The term percent is the bondsman’s non refundable fee. You still have to put up collateral or have a cosigner, or some such. Many people decide going to court and getting sentenced to prison for a few years is better than having mom lose her house because she put it up as collateral to bail their sorry ass out of jail.

  4. Related: Texas State Senate Criminal Justice Committee Chairman John Whitmire filed complaints this week against three Harris County magistrate judges – Eric Hagstette, Jill Wallace, and Joseph Licata III – after the Houston Chronicle published video of the assembly-line justice which has become routine in Texas’ largest county.

    As Grits says, you might beat the rap but you won’t beat the ride, and the thought of getting stuck in jail for 8 or 10 months awaiting trial over some BS charge due to a bond set high enough that the poor can’t meet it is a good way to squeeze plea deals out of anybody unfortunate enough to fall into the maw of the criminal justice sausage-making machine whether they’re guilty or not.

  5. Here’s a much simpler idea: if someone makes bail and behaves (ie, no further arrests, shows up on time) then they get double the amount back if found innocent.

    Similarly, if they can’t make bail and are subsequently found innocent, they get not only the bail on release, but also whatever their job would have paid them.

    IOW, put the accountability on the elites who charge too much bail. Of course, it really ends up costing taxpayers, but it does show up as budget items.

    1. I like that idea, but the system does not “find innocence”, just “not guilty”. A 10%~30% service fee would be easier to sell on a not-guilty verdict, and more in line with what the money usually costs. If charges are dropped, the defendant gets the fee.

      I will add it in with my idea to issue a voucher for legal defense for anyone charged with a crime. The voucher would be enough to put on a decent defense, think $2,000 for shoplifting, $100k for capital murder.

      If the prosecution can’t make it’s case, the defendant should not have to pay life-ruining legal bills.

      1. One of the gimmicks I came up with is that no party can outspend any other. If the prosecutor wanted to spend $100K and the defense only had $10K, the prosecutor would have to loan the difference to the defense, and loser pays makes it a terrifically honest gamble. Of course, the big problem is trying to calculate each party’s expenses accurately.

        So my next version dropped that and went with my proposal above, so each party makes their own decision about how much they want to bet. A poor party with an excellent case should be able to easily find a good lawyer who can smell the extra cash for winning. It’s self-correcting, self-adjusting, and eliminates any need for intrusive accounting of expenses of my first idea, while at the same time eliminating the power of the State to outspend poor defendants.

        It’s not foolproof. Poor defendants who can’t convince anyone of their innocent can still get railroaded, so that’s unchanged from now. But good cases come off much better than now and really put the hurt on malicious vote-grabbing prosecutors and police looking for an easy bust.

  6. In addition of a discipline, permitting somebody to gather welfare or unemployment for more, making them less inclined to land a higher paying position later on since bosses don’t care for seeing holes in work, help with coursework particularly in the event that it was so they can remain on government help for more, or by removing their life saver, compelling them to take a lower paying occupation as an impermanent give up, however a stage in the correct course to land a higher paying position later on? I favor the last mentioned.

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