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.