Criminal Justice

California Mulls Bail Reform

As the state legislature reconvenes, getting rid of cash bail will likely be on the table.

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Facing an existential threat to their business model, California's bail-bonds industry worked last session to derail two bills that would have changed the way the state deals with people who have been accused of crimes, but are awaiting trial. Opponents even brought out the colorful reality TV star, Duane "Dog the Bounty Hunter" Chapman, to make the case that the Assembly should kill the bill that was on the table.

Nevertheless, California again is moving forward with plans to largely do away with the "money bail" system. Even though the bills ultimately were shelved, they are likely to come back now that the state legislature has reconvened. The reform effort has since gained a boost from two important sources—a working group established by state Supreme Court's Chief Justice Tani Cantil-Sakauye, and from Gov. Jerry Brown (D), who issued a statement in August promising to craft a "cost-effective and fair" reform to the bail system.

The reason is obvious. The current process is fundamentally unjust, as it too heavily relies on an accused person's financial status—rather than flight risk and danger to the public—to determine whether that person goes home or stays in jail. It also hammers California's taxpayers. The bail-bonds industry touts its efforts as cost effective because private insurers underwrite these bonds—and then private "recovery agents" track down those who go on the lam.

Yet they neglect to mention the enormous costs to taxpayers of housing so many people during pretrial detention. According to a UCLA School of Law study from May, California jails 59 percent of those people accused of crimes compared to 32 percent nationwide. Such pretrial detention, for instance, costs $204 a day in Santa Clara County compared to $15 a day when the accused are released as part of a pretrial supervision program.

But the main public policy issues involve justice and public safety. The current bail system fails both of those tests, as well. With money bail, a person accused of, say, voluntary manslaughter might be required to post bail of $100,000. If the person has that much cash in the bank, he or she could provide that amount to the court and get it refunded after showing up for trial.

More commonly, the person will pay 10 percent to a bail-bonds company, which posts a bond guaranteeing the full bail amount if the accused is released and then hops a bus to Guadalajara. That's nonrefundable. Bounty hunters (such as "Dog") track down the folks who run away. It makes for good TV, perhaps, but it's not a good way to administer a justice system based on a presumption of innocence.

Most people who are accused of crimes don't have the money to bail themselves out, nor do their families. A wealthy person accused of a serious crime can post bail and go home. A poor person accused of a lesser crime will languish in jail. The court process can be excruciatingly long. Those who wait in jail are three times more likely to be sentenced to prison than those who post bail, according to reports.

The reason is simple. If you were accused of a crime, but didn't have the money to get out, you'd be far more likely to accept a plea deal—any plea deal—so you could get back to work, or get back to your kids. How do you pay the rent or car payment while you're sitting in a county jail? The prosecution already holds most of the cards in the criminal justice system, and this system gives prosecutors a winning hand.

Public safety should of course be the first concern. After New Jersey passed reformed its bail system, "the state's jail population has fallen by 15.8 percent, while crime has decreased 3.8 percent and violent crime by 12.4 percent," according to my R Street Institute colleagues Arthur Rizer and Caleb Watney, writing in USA Today in September.

It's reasonable to think that a pretrial release system based on a "robust risk-based pretrial assessment and supervision system," as the California Supreme Court's working group explained, actually could improve public safety. The group explains that these pretrial programs "give judges more tools to supervise defendants, such as drug testing, home confinement, and text reminders for court dates." Such a system also gives judges more power to keep potentially dangerous people behind bars.

The UCLA study found myriad problems with the current commercial bail-bond industry. The study noted, as we saw during last session's hearings, that it "has exerted significant political influence through organized lobbying, fueling growth in the use of money bail and curtailing the expansion of non-monetary pretrial release mechanisms."

That's to be expected. Every interest group has an incentive to lobby and contribute to political campaigns. But legislators need to listen more to the evidence and less to emotional appeals offered by self-interested parties.

This article first appeared in the Orange County Register.

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19 responses to “California Mulls Bail Reform

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  3. Prediction; no matter how good and just an idea bail reform may be, regardless of what form such a movement may take in California, the California p9litical establishment will screw it up and make matters worse.

    1. True, they do not have a good track record. This is right up the liberal alley though and what they have to do is so simple. Just shift the focus from money to flight risk. The crazy part is those with less money are less of a flight risk. The current system puts that notion on its head.

    2. I sometimes wonder why if California is such an evil Socialist experiment that is hasn’t burned itself to the ground with people resorting to cannibalism to feed themselves if it were the hellscape portrayed by Republicans that I’ve talked to.

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  4. Our courts system is probably the most poorly implemented part of our government. There isn’t any good outcome due to the incredible impact of getting involved with the courts in any aspect.

    Serving on a jury can be a devastating blow. Getting involved in a nonsense lawsuit can wipe you out. Even an uncontested divorce is going to rack up huge amounts of fees and it’s still a crapshoot since a family court judge can rewrite the decree based on whatever wild notion they have that day.

    Between the IRS and our courts, I feel we’ve lost a lot of ability to control the course of our lives.

  5. Is bail reform really about saving money? If that is the goal then just open the door and let everyone out and it wont cost CA $15 a day, it will cost $0 a day. This kind of thinking is absurd. The sole purpose of any form of pretrial release is to ensure the appearance of a defendant in court. It is NOT about release and emptying jails, it is about APPEARANCE. Every legitimate third party objective study done on the topic has shown that release on a financially secured bond is the MOST effective way to ensure appearance. The UCLA study referred to in this article is the most biased piece of non-research I have ever read. It actually cites a press release from a CA senator on Bail reform as a fact. It then goes on to systematically claim that any study that shows bail works is faulty and every opinion and article written about how bail doesnt work is fact.

    California does NOT have a bail problem. It has a crime problem. Since the passing of AB109, prop 47 and now prop 57, there are NO poor people languishing away in jails. According to a recent LA County Sheriff study, less than 2% of the defendants in the LA County jail in 2016 were there on low level, non violent crimes and were eligible for bail. Less than 2%!!!!!! So if you reduce that even more by those that do bail out, you have very few truly indigent folks left in jail. NOT 70% as the UCLA study and bail reform advocates say.

    1. Then why hasn’t New Jersey been burned to the ground by all the people who got out early as reported in the article?

  6. If you want to see what happens when you get rid of bail…look at Harris County Texas. Thanks to a Federal lawsuit there is no longer financially secured release in Harris County. The result, OVER 43% of defendants are not showing up for court. How is that for justice? 43% of the victims in Harris county Texas never get a chance a justice because the defendant is thumbing their nose at the system. The defendant knows that without a bail agent, NO ONE will come after them and get them back to court. It isnt rocket science. It is common sense. When people have something to lose and other’s around them have something to lose, they show up for court…period.

    It is time to start thinking of ways we can help people stop committing crimes in the first place as opposed to just excusing them for the crimes they do commit. All this is doing is empowering criminals to continue to break the law and put us all in danger. We need to stop treating the criminals like victims and instead start treating the real victims with the dignity and respect they deserve so they can seek justice.

    1. How about rather than “start thinking of ways we can help people stop commit crimes” we look at ways to decriminalize the many many stupid things that get people sent to jail in the first place.

      The problem starts because too many people are going to jail for things that shouldn’t be crimes in the first place.

      1. people are not going to jail for minor crimes anymore. Thanks to prop 47 almost all misdemeanors are cited and released. The people left in jail in CA after those that bail out are extremely dangerous repeat offenders with high bails. 90% of people in the LA County jail in 2016 were there on FELONY charges. Here is the source….

        http://bit.ly/2CupgXf

        in regards to Harris County below…. here is the article with those stats. When people have no skin in the game…they do not show up for court. Solving jail overcrowding should not simply be decriminalizing every crime and letting people off the hook.

        http://bit.ly/2m3Ce89

        1. We don’t care about your overzealous criminal penalties “public safety”.

        2. 90% of people in the LA County jail in 2016 were there on FELONY charges.

          So? Back in the day a typical felon was someone like John Dillinger. Today it’s someone like Martha Stewart.

          Possession of a thimble-full of dozens of substances are felonies. Illegally copying a movie is a felony.

          There are way too many felonies.

  7. . . . The result, OVER 43% of defendants are not showing up for court. How is that for justice? 43% of the victims in Harris county Texas never get a chance a justice because the defendant is thumbing their nose at the system. . .

    Assuming this is true [though that is a fact not in evidence w/o citation?], in how many of those cases is the victim the State (i.e.: there is no victim)?

    It is time to start thinking of ways we can help people stop committing crimes in the first place as opposed to just excusing them for the crimes they do commit. . .

    If we didn’t criminalize every damned thing there’d a whole lot let commission of “crimes”.

    1. This is actually happening because the county itself is screwing up the scheduling of court hearings and giving people the wrong dates and/or courtrooms.

    2. If we didn’t criminalize every damned thing there’d a whole lot let commission of “crimes”.

      There you go again, clouding the issue with logic.

  8. “California Mulls Bail Reform”

    Meanwhile, Arkansas bails on mullet reform.

  9. How do you know you’re near a courthouse in California? The bail billboards start blocking out the sun.

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