Leave it up to the California Legislature to take a bad government-run system, argue about it for months, then cobble together a compromise that will make things worse—and make nobody happy. That's exactly what has happened with the hot-button topic of bail reform, as the full Assembly narrowly passed Senate Bill 10 last week. It was subsequently approved by the full Senate and signed into law Tuesday by Gov. Jerry Brown.
The concept is indeed a good one. The current money bail system stacks the deck overwhelmingly in favor of the prosecution. Our justice system is predicated on the presumption of innocence. It's tough to fight City Hall and even tougher to fight police and prosecutors if one is accused of wrongdoing even in the best of circumstances (ask the president).
If you're accused of committing a serious crime and have cash, you can post bail, go home and prepare your legal fight. If you're accused of a crime but lack the cash, you will languish in jail as the excruciatingly slow wheels of justice turn. In the meantime, you'll probably lose your job, your apartment, your car and your possessions. If you're a single parent, your kids will become wards of the state, with the always frightening Child Protective Services stepping in.
People who can't post bail are three times as likely to receive prison sentences than those who are able to post jail and head home, according to reports. It's because people who can't afford to post bail are far more likely to accept a plea deal—any deal—that lets them out of jail while they await trial. That, in a nutshell, is what bail reform is about.
S.B. 10 was designed to largely eliminate the money bail system and replace it with a judicial process for determining release. But new provisions are so problematic that many of its key backers, including the ACLU of California, have not only withdrawn support—but actively urged a veto.
"We oppose the bill because it seeks to replace the current deeply-flawed system with an overly broad presumption of preventative detention," the group said in a statement.
If the new rules make it more likely that the accused will remain in jail, then what's the purpose? Indeed, bail reform has become one hot mess, with the latest evidence suggesting that both sides might be dizzyingly far off of the mark on what they say the reform might accomplish. The goal, again, is to assure that non-dangerous people can go home and have a decent shot at due process as their case winds its way through the system.
But a June report from Prince George's County, Md., suggests that Maryland's bail-reform experiment has resulted in the opposite of its intention. Although "cash bails have decreased, judges have opted to hold more people without bond instead of releasing them on their own recognizance," according to a Washington Post review of the findings. It's not an outlier, either, as "the trends found in the June report track similar findings from studies conducted by Princeton University and the Maryland Office of the Public Defender as well as anecdotal observations from local public defenders."
Perhaps it's the law of unintended consequences. Backers of bail reform, including this writer, believe that it's a good way to base release on risk assessments rather than a person's cash reserves or family connections. It also offers a potential for significant public cost savings. Although the bail system is a form of private insurance, it's costlier to keep people in a government-funded jail than it is to have them at home. Perhaps we didn't consider the possibility that judges would routinely err on the side of incarceration. It makes sense. What judge (especially an elected one) wants to be the one that mistakenly released a violent criminal?
The law-and-order crowd has been equally off the mark. They've tried to portray justice reform as a liberal effort to set criminals free. "By eliminating bail, criminals will stop showing up for trial," opined former GOP gubernatorial candidate Travis Allen of Huntington Beach. "By stripping bail bondsmen of their power to bring criminals to justice, more criminals will roam free." That's not what appears to be happening in states that reduce money bail.
S.B. 10's backers portray the bill as a first step forward, but that's just the politics talking. Passing something that doesn't really fix anything is never a good idea—and it takes away the energy from doing it right. Now that bail-reform will become law, legislators will take a "been there, done that" approach and move on to other things. Brown should have vetoed this bill, convened a serious task force to examine thoughtful and safe ways to end the bail system, and then came back next year to pass something that's at least better than what we have now.
This column was first published in the Orange County Register.
Steven Greenhut is Western region director for the R Street Institute. He was a Register editorial writer from 1998-2009. Write to him at firstname.lastname@example.org.