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California's Bail Reform Deal Is Worse Than Doing Nothing

Bail reform is a good idea, but California lawmakers turned it into one hot mess.

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 But new provisions are so problematic that many of its key backers, including the ACLU of California, have not only withdrawn support—but actively urged a veto.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 sgreenhut@rstreet.org.

Photo Credit: Rick Neibel/agefotostock/Newscom

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  • loveconstitution1789||

    It would be one thing to Own Recognizance defendants facing misdemeanors.

    Its another thing to mess up affordable cash bail for those who want it, who can afford it, and to prevent the State of California from violating the 8th Amendment.

    8th Amendment: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

  • Eddy||

    Don't forget this from the California Constitution, Art. I(12):

    "A person shall be released on bail by sufficient sureties, except for:

    "(a) Capital crimes when the facts are evident or the presumption great;

    "(b) Felony offenses involving acts of violence on another person, or felony sexual assault offenses on another person, when the facts are evident or the presumption great and the court finds based upon clear and convincing evidence that there is a substantial likelihood the person's release would result in great bodily harm to others; or

    "(c) Felony offenses when the facts are evident or the presumption great and the court finds based on clear and convincing evidence that the person has threatened another with great bodily harm and that there is a substantial likelihood that the person would carry out the threat if released.

    "Excessive bail may not be required. In fixing the amount of bail, the court shall take into consideration the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at the trial or hearing of the case.

    "A person may be released on his or her own recognizance in the court's discretion."

  • Ron||

    So based on this the courts don't even have to require bail and if they just follow the existing constitution then no new laws are required. But we cant respect old constitutions written by old white men and representatives need, I say NEED to make new laws to justify their salaries.

  • Scarecrow Repair & Chippering||

    Interesting stuff hidden away there, in plain sight. Thanks, bud.

  • Eddy||

    One could make a good argument that, since many Founding-era state bills of rights recognized a right to bail in noncapital cases, such a right was among those retained by the people in the 9th Amendment, or protected as privileges or immunities of citizenship under the 14th Amendment.

    Surely there would be no shortage of lefty lawyers willing to make such an argument in favor of the right to bail? Unless they've been body-snatched and want nothing to do with bail whatsoever.

  • bvandyke||

    Wow, that doesn't actually seem bad at all. Why not follow this?

    We are really in a fucked up state.

  • UnrepentantCurmudgeon||

    Actually, the courts do follow it.

  • Antilles||

    The only thing that matters is at least they're doing SOMETHING!

  • 100% Satisfaction Guaranteed||

    That's actually true, whether you intended it comically or not. They're addressing something recognized as a problem that they made, rather than ignoring said problem, and there is a bit of pie-in-the-sky optimism that assumes the first atremot must be perfect or why bother.

  • 100% Satisfaction Guaranteed||

    *attempt

  • John B. Egan||

    i agree. Our bail system is so messed up, IMO, anything is an improvement. Similarly our punishment is absurd. In Sweden, a driver was pulled over for speeding.. Over 100MPH if I recall. He was travelling so fast, it took him 5 minutes to stop.. As he was a multi-millionaire, his fine was way up there: $962,000 ... Oddly, this caused many to be irate as it seemed excessive.

    In fact Swedish law, as our own states that the fines have to fit the crime. Just as my daughter received a $1000 fine, several months of expensive 're-training' an ankle monitor and 2 months of home detention, if Donald Trump were to commit the same crime, he too would receive the same punishment.. That's nonsense. He'd just hire a limo and write off the expense on his taxes as business. The punishment in my daughter's case far outweighed the 'pocket change' punishment that Trump would receive..

    We need to fix this in the same way.

  • UnrepentantCurmudgeon||

    You're making the same mistake many people make: bail is not punishment for the crime, it is a surety to make sure the defendant appears in court when required to do so. California law as it stands precludes a court from imposing excessive bail, and generally the courts impose bail according to an established schedule. It's indeed unfortunate that some defendants cannot afford bail, but here's the problem: what alternative to bail is there that will accomplish the same intended purpose of reasonably insuring the defendant's appearance in court? Nobody, including the authors of this bill and Governor Moonbeam have come up with any.

  • chemjeff radical individualist||

    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.

    So what happened to the whole "right to a speedy trial" thing?

  • Eddy||

    HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA!

  • UnrepentantCurmudgeon||

    As often as not the delays in getting a case to trial come from the defense. Sometimes as a stall, often because they need time to retain experts, do investigations, etc. The law requires judges to keep every case on a trial track and every continuance brings a case closer to trial (eg, the judge will grant the continuance and set the new date as "15 of 30", meaning that there remain 15 days before the case must be tried). The judges hold the attorneys' feet to the fire because the judicial administrators hold the judges' feet to the fire. And so it goes

  • Uncle Jay||

    Bail is for the rich elitist criminals to stay out of jail.
    It's not for the common riff-raff.
    Where do you think you are, America?

  • RPGuy16||

    The cash bail system has survived in part because coming up with a better alternative is difficult.

  • damikesc||

    That is the crux of it. Cash bail might suck...but a better option really isnt out there.

  • buybuydandavis||

    The first of Thomas Sowell's 3 Questions:
    Compared to what?

    Most anything the Left ever agitates for falls to this question.

  • John B. Egan||

    Meh! ... Back to 'Gee!! let's do nothing then'.

  • DrZ||

    "California's Bail Reform Deal Is Worse Than Doing Nothing"

    On a broader scope: California is worse than doing nothing.

  • buybuydandavis||

    Although "cash bails have decreased, judges have opted to hold more people without bond instead of releasing them on their own recognizance,"

    Duh.

    Cash bail is the hostage you give to make sure you show up for court. No hostage, and you're less likely to show up, and so there is more reason to keep you in.

    Used to be 3 options - release on your own recognizance, bail, held
    Getting rid of bail as an option leaves the other 2.
    What kind of buffoon would assume that all of the former bail recipients would automatically be released instead of held?

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