Bail

Bail Bond Industry Attempting to Force California Jail Reforms to the Ballot Box

A law signed in August will eliminate cash bail entirely in the Golden State, and quite a few jobs in the process.

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Jail cell
Albund / Dreamstime.com

Representatives of the bail bond industry in California say they've got enough signatures to force a public vote over a law that essentially eliminates their work across the Golden State.

SB10, signed into law in August, eliminates the use of cash bail in California. Instead county courts are required to set up pretrial services and use risk assessments to determine who should be released (and how much monitoring they require) from jail before their trials and who was too much of a flight risk or too dangerous and had to be kept in detention.

The bill was passed amid a recently growing criminal justice reform push to solve the problem of hundreds of thousands of defendants who remain stuck in jail prior to their trials not because they're dangerous, but because they cannot afford the bail amounts demanded of them by the courts. They have not yet been convicted of a crime, but they're stuck behind bars like criminals because they don't have the money to pay for their freedom. As a result, those who remain in jail are more likely to accept bad plea deals and longer criminal sentences than they would had they been free to fight the charges.

New Jersey and Alaska have changed their systems and all but eliminated the use of cash bail, decimating the bail bonds industry. California's bill takes it a step further and eliminates the cash bail option entirely, relying instead on pretrial risk assessments and monitoring and communication services to make sure that people return to court.

But today a coalition of bail bond groups announced they had gathered enough signatures (more than the 500,000 that the state requires) to force SB10 to a voter referendum in 2020. If those signatures are deemed valid, the law cannot be implemented until the public votes on whether to keep it intact.

That's a big challenge to the law's future, though keep in mind that cities, counties, and courts do have the ability to reduce the dependency on cash bail to determine who gets to go free. And some places in California—Santa Clara County, for example—have done exactly that. But it's a lot of work and requires funding to get going, and so some courts still just turn to the bail schedule with little discussion or debate about whether a defendant is actually a risk. SB10 was supposed to change that.

But the new law also raised serious concerns among civil rights groups and criminal justice reform advocates. In the process of hammering out the details, a lot of power was handed over to the courts to determine how to implement the changes. Furthermore, the presumption that defendants would be released unless they were determined to be either dangerous or flight risks was stripped out of the final bill. This caused the American Civil Liberties Union and other groups to turn against the very bill they helped craft. They fear that this change, if badly implemented, could result in more people being stuck in jail without even the possibility of cash bail and no way to get out at all.

So SB10 now exists in a strange space where the people who already control the courts are in charge of it and support it, while both the bail bond industry and criminal justice reformers have problems with the legislation. And you better believe that the bail bond industry, which has raised $3 million so far to bring this bill to a referendum, is going to dredge up every criticism of the bill from the criminal justice reform camp as the fight heats up.

Update: Right after this blog post went up, the ACLU of Northern California sent out a prepared statement making it clear they are not on the same side as the bail industry here, even though they themselves have problems with SB10. Director Executive Director Abdi Soltani says: "Make no mistake, the bail industry is not interested in equal justice or equal protection under the law, they are seeking to turn back the clock to protect their bottom line. Furthermore, any implicit or explicit suggestion that the ACLU stands with or supports the bail industry is patently false."

This blog post has been updated to add a response from the ACLU.

NEXT: The $200 Genome

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  1. Everybody, and I mean every last person, should be in jail until they can buy their way out.

    1. it’s in the constitution!

  2. “They fear that this change, if badly implemented, could result in more people being stuck in jail without even the possibility of cash bail and no way to get out at all.”

    But, but…intentions!

    1. better not do anything, then.

      1. Go ahead and develop that reasoning a bit more…I’m intrigued by whether you can make this straw man walk and talk.

  3. If you get rid of cash bond, then who gets out and who stays is entirely up to the judge. I don’t care what kind of presumptions you write into the law, the judge makes the factual determations and this allows a judge nearly complete discretion about who gets bail and who doesn’t.

    The fact is we have to do this some way. The bail bond system does it primarily by letting people out based on their willingness and ability to pay for it. Getting rid of that system leaves the decision entirely up to the judge.

    I really don’t think that is going to turn out very well for anyone who cares about freedom and justice. Getting rid of cash bonds sounds great until you think through it. It is easy to see what is going to happen. Some judges are going to be very lienent and that is going to produce a parade of horror stories that will get the public to throw said judges off the bench thus sending the message to the others that you let people out on bail at the risk of your career. This will result in a much more draconian and injust system than we have now.

    Libertarians are fools to get behind this movement.

    1. Libertarians are fools to get behind this movement.

      How many libertarians do you figure to be in the market for pointers on liberty and criminal justice from right-wingers?

      1. “How many libertarians do you figure to be in the market for pointers on liberty and criminal justice from right-wingers?”

        Probably more than from lefty wing lying assholes like you.

        1. i’ve never met a hard-working libertarian–unless you consider spending daddy’s money for frat dues hard work. perhaps that could be the reason why you lazy parasites all bemoan a world that doesn’t listen to you.

      2. Everyone knows you are dumb as a post and make up for it by being angry and ignorant. You don’t need to remind everyone. Why don’t you just let the adults talk for a while. You don’t have anything to add to the conversation. And this is not a partisan thread. So it is not what media matters is paying to shit all over and make intelligent conversation impossible.

      3. If they are correct about liberty and criminal justice reform why would it matter which team they are on.

        Oh yeah, principals over principles.

    2. you have no clue how this works. the judge determines bail now.

      1. The comment you’re responding to [Here]

        –Your head.

    3. Santa Clara County LP is currently backing the Bail industry, and the upcoming Ballot Measure in 2020. We were initial in favor of the original bill, but as amended, we backed away.

      A very simple example of what the new language can mean: A man is arrested, after police fined a gun in his possession that MAY be against the law (See also magazine ‘repair kits’). A judge looks at this as a gun crime, and denies release. Even if he has no priors, no other offenses submitted by DA, model citizen, etc etc, there is nothing stopping a Left Leaning Judge from locking him up and throwing away the key, because “gun charge”.

    4. John–The problem is cash bail has often been the only way to get out of jail, particularly in California. The problem with the California movement is this is an all-or-nothing approach. I supposed a cash bail is appropriate in some circumstances, such as “Pay $300 now or cool your heels until we evaluate your case in a couple of days”. This option will be eliminated.

      True California tradition-moderation is never an option. If something is a bad idea for some, then banning it completely is a Great Idea! The corollary is also true: If something might be a good idea for some people, then making it mandatory for all is a Great Idea!

  4. “SB10, signed into law in August, eliminates the use of cash bail in California. Instead county courts are required to set up pretrial services and use risk assessments to determine who should be released (and how much monitoring they require) from jail before their trials and who was too much of a flight risk or too dangerous and had to be kept in detention.”

    This seems like legislation where the heart is in the right place but could go terribly wrong. I can see a situation where the review process is captured by prosecutors and now more people are locked up, even if they might have previously been able to make bail.

    1. “Bug, not feature.”

      /Your local courthouse gang

      1. Feature, not bug, whatever, but remember the courthouse gang always gets it right.

    2. Anyone who has any sense can see that situation. But somehow the ability to think through the second order effects of a decision is something the millenials at reason just don’t do.


      1. Anyone who has any sense can see that situation. But somehow the ability to think through the second order effects of a decision is something the millenials [sic] at reason just don’t do.

        Lets be honest, this is something most people don’t do. Why politicians should be any different is a true mystery.

        1. I would hope that reason would hire people who could.

          1. You’re a funny guy, John. I think we have at least a few years evidence on hand that says Reason is an ironically titled publication.

          2. “But the new law also raised serious concerns among civil rights groups and criminal justice reform advocates. In the process of hammering out the details, a lot of power was handed over to the courts to determine how to implement the changes. Furthermore, the presumption that defendants would be released unless they were determined to be either dangerous or flight risks was stripped out of the final bill. This caused the American Civil Liberties Union and other groups to turn against the very bill they helped craft. They fear that this change, if badly implemented, could result in more people being stuck in jail without even the possibility of cash bail and no way to get out at all.”

            Apparently you skipped right over that paragraph.


            1. Furthermore, the presumption that defendants would be released unless they were determined to be either dangerous or flight risks was stripped out of the final bill. This caused the American Civil Liberties Union and other groups to turn against the very bill they helped craft.

              I think it’s absolutely adorable that they thought such a provision would make literally any difference whatsoever since guess who’s deciding on critia such as ‘dangerous’ or ‘flight risks’ in the first place.

              1. I agree that there should have been stronger protections in the first place. As I said below, limiting the number of crimes for which pretrial detention is even an option, or of course simply eliminating many crimes, would be much better. I think there are ways to get it right. Baltimore’s had bad early results, New Jersey has had positive ones. Depends on how it’s designed IMO.

            2. No I didn’t. I just read that paragraph. You should try doing the same. It says the problem with this bill is that it doens’t grant a presumption of release. As I say above, no presumption is going to keep the judge from doing what he wants and such presumptions are a dead letter for protecting civil liberties. There is nothing in that paragraph that objects to ending cash bond. It just objects to this bill in particular. So, my point stands.

              You should try reading and thinking a little harder before you accuse others of missing things. I didn’t miss anything. Come back when you have a relevent point to make instead of wasting everyone’s time with “LEAVE REASON ALONE!!” fan boy cry de coers.

              1. Shackford’s written multiple articles about how ending cash bail could potentially back fire (or has in some places). If you think the potential downsides will outweigh the potential upsides and thus this should just be opposed in all forms, fine. But you always make disingenuous strawman arguments accusing your opponents (Reason writers or not) of not considering something they have repeatedly in fact acknowledged.

                I think it’s a tough reform to get right. But I’m not convinced that the evidence shows it will produce net negative outcomes in all cases. I think it depends a lot on how it’s implemented. Based on articles here, Baltimore’s reform led to more people staying in jail, New Jersey’s led to 20% fewer people staying jail. One thing that could help reduce the risk of judges excessively locking people up is limiting the number of crimes for which that’s even an option (as would be eliminating many crimes of course, but that’s a much more difficult goal to achieve). It might not be simple, but I don’t think it’s close to impossible to design a bail-free system where the incarceration incentive for judges is allowed to worsen the problem.

                1. Shackford has admitted that the harms could occur if the laws are not written correctly. Shackford is not a lawyer and as usual is just talking out of his ass. He still supports this because he thinks that if properly written it won’t be abused. And he is just wrong about that and doesn’t know how courts actually work.

                2. The problem with limiting the number of crimes is that some dangerous people are arrested for nonviolent crimes. Why should someone who is a flight risk or dangerous be let out just because they didn’t get arrested for a violent crime where someone who isn’t still run the risk of being held just because they did?

                  There are some people who are denied bail because they are really dangerous and charged with serious crimes. But that is a lot less than 80% of the people arrested. So, yes there was a 20% reduction in the total people held. That sounds good until you consider how many of the remaining 80% would have gotten out had there been cash bail. You are assuming that none of them would. I don’t buy that. i bet some of them would have. And they are now being denied bail in violation of their 9th amendment rights.

      2. This SB 10 is more controversial than I realized.

        California’s bill to end cash bail could make history?and splinter the left

        Yet as lawmakers have moved in recent weeks into the final stages of crafting the bill, giving judges more say over who can be held in jail before trial, some civil rights advocates who once led the charge for bail reform in California are now lobbying against it. They say the new version replaces the problematic money bail system with an equally problematic system that may perpetuate racial biases and leave just as many people locked up before trial.


        1. They say the new version replaces the problematic money bail system with an equally problematic system that may perpetuate racial biases and leave just as many people locked up before trial.

          I just fucking knew they’d bring up some bullshit disparate impact as their reason for opposing. I mean, it’s basically all they have on any subject these days.

      3. then there’s the people who have their mind made up for them by some blogger’s article. like this one.


  5. to solve the problem of hundreds of thousands of defendants who remain stuck in jail prior to their trials not because they’re dangerous, but because they cannot afford the bail amounts demanded of them by the courts. They have not yet been convicted of a crime, but they’re stuck behind bars like criminals because they don’t have the money to pay for their freedom

    Yeah, because after all these’s no requirement for a speedy trial right? RIGHT?!

    1. There is that. The problem here is not the bail bonds system. The problem is that we have too many laws and arrest too many people such that it is impossible to get a speedy trial. If people got speedy trials not getting bail would not be such a hardship. This is a cure for a sympton not the underlying problem.


      1. This is a cure for a sympton not the underlying problem.

        Essentially, yes, and if the ACLU actually gave a flying fuck about civil rights (or even understood civil rights at all) they would note that who really gives a damn about bail bonds when the state itself is violating a basic American civil right mandated in the U.S. bill of rights in amendment 6.

      2. If people got speedy trials not getting bail would not be such a hardship

        Said no libertarian, or even proximate to being a libertarian, ever.

        1. It would help if you knew what big words like “speedy” actually meant. Take your 75 IQ and troll somewhere else. We don’t have the time to humor you today.

        2. No offense intended Kirkland, but you are not proximate to any version of libertarian (or liberal for that matter) in the known universe so you’ll forgive us if we take your word at it’s face value of negative ten million.

        3. Said no libertarian, or even proximate to being a libertarian, ever.

          Ok, it’s official, we’re in a libertarian thread.

          1. but are you libertarian enough, comrade?

          2. Now that I’ve posted it is.

      3. ^^^This. When the founding fathers established the legal system; I don’t think they ever intended it to be used to fight a war on drugs among other things. If the war on drugs were to be abolished tomorrow: must legal jurisdictions would see their caseloads drop by 50%. Perhaps even more than that as many property crimes are committed by people to finance drug purchases on the black market.


    2. Update: Right after this blog post went up, the ACLU of Northern California sent out a prepared statement making it clear they are not on the same side as the bail industry here, even though they themselves have problems with SB10. Director Executive Director Abdi Soltani says: “Make no mistake, the bail industry is not interested in equal justice or equal protection under the law, they are seeking to turn back the clock to protect their bottom line. Furthermore, any implicit or explicit suggestion that the ACLU stands with or supports the bail industry is patently false.”

      Does anyone really care what the ACLU has to say any longer? I mean, they’re a partisan hack group that quite literally has no understanding of what a civil right actually is so…why are we even paying them any attention these days? Honest question.

      1. No one should care what the ACLU says.

        1. Certainly not bigoted, authoritarian right-wingers who favor government womb management, statist ‘your papers, please?’ immigration practices, white nationalism, tariffs, special privileges for superstition, endless detention without trial, and the rest of the Republican-conservative collection of stale policies.

          1. You are the biggest racist on here. Take your backwoods bigorty and racist back to Storm Front where it came from.

          2. Ha, this is some Poe’s Law material right here. Turns out, Arthur doesn’t believe in nations at all. Truly an anarchist of the most ludicrously ill-informed sort.

            You’d need to be a special brand of ignorant to infer endless detention without trial into a pro-6th amendment argument.

    3. speedy trial is the most ignored 6th amendment right by far.

  6. Perhaps if there were fewer laws?

  7. ACLU of Northern California sent out a prepared statement making it clear they are not on the same side as the bail industry here, even though they themselves have problems with SB10.

    I’m wondering if there’s a prison-guard’s union thug somewhere in the background on this bill?

  8. OT:
    New proof that ‘common sense’ laws outlawing gun ownership WORK!

    “Complete coverage: Chicago hospital shooting”
    […]
    “A Chicago police officer, an emergency room doctor and a pharmaceutical resident were killed Nov. 19 in an attack at Mercy Hospital & Medical Center on the Near South Side that sent medical personnel and police scrambling through halls, stairwells and even the nursery in search of victims and the shooter before he was found dead.”
    https://www.chicagotribune.com/news/ct-
    chicago-mercy-hospital-shooting-story-
    gallery-20181120-storygallery.html

    None of that happened, since you can as easily own a tactical nuke in Chi-town as a hand gun. Promise, did not happen; those Chicago gun laws WORK!

    1. No no, you don’t understand Sevo. Those regulations haven’t been pushed out all across the nation so Texas gun sellers are responsible for crime in Chicago.

  9. There is some guy who posts over at Volokh named James Pallock who is actually dumber than the Rev. I am not kidding. Look at this thread

    https://reason.com/volokh/2018/…..nt_7569285

    It is the closest thing to peak stupid you will ever see. For example, I made the point that freedom of association necessarily means the right to discriinate and choose not to associate with some and associate with others. As an example, I say

    If I want a club that admits only those who understand informal logic, but discrminating on the basis of knowledge of logic is prohibited by law, I can’t have my club as I wish and thus am not free to associate as I choose.

    Pretty simple right? His response is,

    But discriminating on the basis of knowledge of logic ISN’T prohibited by law, so you ARE free to associate as you choose.

    I find that kind of stupidity both fascinating and terrifying.

  10. I’m wondering if there’s a libertarian argument for the bail system– or at least a version of it.

    Bail is generally set (and the amount) based on the severity of the crime for which you’re accused and your perceived flight risk and/or danger to the community while awaiting trial.

    It’s a somewhat non-binary system that creates a direct financial incentive to return to the court for trial.

    One might think of it as an “analog” system vs a “binary” one. Any cash bail reform system seeks to turn the process into a binary one: An overseeing body or panel says ‘yay or nay’ on whether you can be released pretrial. You think the wealthy wouldn’t benefit from that system? You think the poor will somehow see less pretrial incarceration?

    It’s kind of like when we mess with straight-voting systems and start putting in top-three or ranked-choice voting. You need to think long and hard before you start messing with those systems.

    I’m not against looking at alternatives to bail, but perhaps there might be an augmented system that goes in conjunction with bail.

    1. There is totally a libertarian argument for it. The judge has to find that there is probable cause to believe that you committed a crime. Think of it from a contractual standpoint. Bail is just you giving a guarantee that you will return. People give bonds and deposites all of the time in contractual settings. I don’t see why they couldn’t do the same in criminal law settings. Does it discriminate against people who dont’ have money? Sure it does. But the entire capitalist system does so as well and last I looked Libertarians didn’t have a problem with capitalism.

      1. Lesson for the day: Don’t do crime if you are poor.

        1. Don’t do the crime if you don’t have a dime?

  11. I still think that, if you like the 9th amendment, the right to bail (except in capital cases where the proof is great and the presumption strong) would seem to be a good candidate for a 9th Amendment right – there’s historical support for it from the founding era, so it’s not something law professors simply pulled out of their butts.

    Likewise if you want a stronger interpretation of 14th Amendment privileges and immunities than the Supreme Court is willing to provide – what could be more of an American privilege and immunity than the right to bail?

    1. If there is a right to bail, that means the bail bonds system cannot be revoked. One way to look at this bill is that it is allowing people to go free without paying a bond. Another equally valid way to see it is that it is incarcerating people who would have gone free had there been a cash bond system. I dont’ see how that is consistent with the 9th Amendment or anything Libertarians should be supporting.

      1. There should be more instances where released on your own recognizance is standard procedure, cash bail is a rarity, no bail is very rare.

  12. The Anti-Civil Liberties Union is not to be trusted.

    1. The chances of them supporting actual civil liberties in a give case has probably gone under 50% by now.

      Though they may support some real civil liberties from time to time, if only to garner good publicity and pretend nothing’s changed.

  13. This is almost, but not quite as morally repugnant as when the California prison guard union lobbied against
    pot legalization.
    If you think that humanity has become more evolved and sophisticated as compared to those who committed crimes against humanity throughout history, you would be wrong.
    Prison guards and bailbondsmen actively work to keep people locked in cages so they make more money.
    Disgusting.

  14. Risk assessment is a great idea. It should be used to set the amount of CASH BAIL. That way, the higher the risk, the higher the bail. Of course, that’s how I always thought it worked.

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