State Senator Bob Hertzberg (D-Los Angeles) and Assemblyman Rob Bonto (D-Oakland) are pushing reforms to the current California bail system that would abolish cash bail. Their proposal would replace the current system with a new agency responsible for assessing each defendant and making a recommendation regarding the defendant's flight risk. Based on the assessment offered by the pretrial agency, a judge would have to decide whether to release a defendant on his or her own recognizance or to require that they be held over for trial.
This new proposal would impose an enormous financial burden on the taxpayers of California, delay the release of some defendants as they wait for an assessment to be completed, and would require judges to make determinations between letting a defendant walk free or keeping them behind bars. There would no longer be any middle ground available for judges; to release a person to prepare for trial while still ensuring that they have sufficient financial obligation to ensure their cooperation during the legal process. It is inevitable that mistakes will be made. Some people who should remain behind bars will go free and others, who could have safely secured release, through cash bail, will remain behind bars as they await trial.
Gubernatorial Candidates And Bail Reform
The citizens of California have an opportunity to elect a new governor later this year. There are many issues to consider during this election cycle and each candidate's stance on bail reform should be examined, as well.
Lieutenant Governor Gavin Newsom is a candidate in the upcoming election. In an opinion piece in the Los Angeles Daily News, Mr. Newsom wrote in favor of abolishing the cash bail system currently working in California, in favor of the new system proposed by SB10.
Former Los Angeles Mayor, Antonio Villaraigosa, is also running for Governor in the November election. Organizations for both police chiefs and law enforcement officers are backing Villaraigosa in his bid for the Governorship, due in part to his opposition to eliminating cash bail.
State Assemblyman, Travis Allen, has come out in strong opposition to bail reform. “Senate Bill 10 would eliminate the bail system in California,” he said in May of 2017. “If it passes, criminals would no longer have to post bail and would be free to roam our neighborhoods.”
As Californians head to the polls in November 2018, they should take into account their candidate's stance on bail reform, and vote accordingly.
What's Wrong With Bail Reform?
Opponents to bail reform cite a number of reasons for keeping the current system in place.
- The new system would create a larger bureaucracy, something California doesn't need.
- Abolishing cash bail is dangerous to the community, especially certain minority groups.
- Reform is unnecessary, as judges are already required to consider a person's ability to pay bail when setting the bail amount.
- California judges and law enforcement officers oppose bail reform.
- SB10 would create a financial burden for the taxpayers of California
SB10 and AB42 Would Create More Bureaucracy
In Senate Bill 10 and Assembly Bill 42, lawmakers propose the creation of an entirely new agency that would be responsible for conducting a pretrial assessment of every defendant before they could be considered eligible for bail. The agency would then make a recommendation to the judge about the defendant's risk to the community and likelihood of flight, after which the judge would determine whether that individual was able to go free or remain behind bars until their trial. While this proposal is intended to take a defendant's ability to pay bail, as well as many other factors, into consideration, the reality is that these types of investigations cannot be done both quickly and well. If speed becomes a priority, it is inevitable that people who are a danger to the community will be released back onto the streets as the warning signs slip through the cracks. If the assessments are done thoroughly, every defendant will wait in temporary lockup, waiting for their assessment to be completed.
Abolishing Bail Is Dangerous To The Community
Because a pretrial assessment cannot be completely both quickly and well, there are two scenarios that worry opponents of bail reform. If the need for a speedy assessment becomes the priority for the pretrial agency, warning signs will be missed and dangerous people will be allowed to walk free, endangering their victims a second time and allowing some to flee their obligation for trial. This scenario puts the entire community at risk.
Hopefully, the new agency would put an emphasis on thorough, careful consideration of pretrial recommendations. However, the result of this would be that each defendant will have to wait in jail until their risk assessment is complete and a recommendation can be made.
Increased Pretrial Holding Time Is A Risk To Some Minority Groups
Some defendants face an increased risk of harm during incarceration, including members of the LGBTQ community. According to a report from the Williams Institute at the UCLA School of Law, the instances of violence against sexual minorities in county jails and prisons are much higher than it against straight prisoners, . In fact, the study shows that violence against sexual minorities in custody is so high, that more than 85 percent of LGBTQ prisoners are held, at least part of the time, in solitary confinement, often for their own safety.
While solitary confinement may be a solution (though not a very good one) for safety during long-term incarceration, it is not possible during a holding period immediately following an arrest. An increased waiting time, between arrest and release, will put members of the LGBTQ community and others at increased risk for violence behind bars.
Bail Bond Agencies Are An Asset To The Community
Bail bond companies are often seen as being a part of the law enforcement system. While they do function as a tool for keeping those arrested accountable to the system and ensuring individuals show up for court appearances and fulfill the conditions of their bail, this is not all that they do. Members of the bail bond industry often provide a variety of other services that aren't currently being provided by anyone else.
Bail bond agents receive calls daily from family and friends who don't know if an individual has been arrested, or where they're being held. They've called local jails, only to get recorded messages or unhelpful law enforcement officers answering the phone. They're desperate to know where their loved ones are and what they can do to get them home.
Bail bond agents use their time and technology to track down arrested individuals and are able to discover where they're being held and on what charges. Then, they can relay this information to the friend or family member and help them work through the process of getting their loved one out of jail and home safely. Sometimes these activities result in a paid bail bond, but often these services are just provided as a service to the community.
Why Do Lawmakers Want To Eliminate Cash Bail?
Assemblyman Rob Bonto (D-Oakland) and Sen. Bob Hertzberg (D-Los Angeles) are pursuing bail bond reform because they believe it unfairly targets poor people and because they believe the bail bond industry is producing too much profit for bail bond agencies and the surety companies that back them. “..what we've learned is that these bail companies are just making an exorbitant profit,” Hertzberg said. He said that unlike other forms of insurance, bail surety companies appear to experience little or no losses. Both bail bond agents and the surety companies who underwrite bonds dispute this claim.
Jeff Clayton, a lobbyist for the American Bail Coalition, said he's baffled by the bill. “We already do a lot of the stuff that's in this bill. We audit our agents regularly, at least annually. We are required to file a form with the Department of Insurance when we terminate somebody, and if there's misconduct we have to tell the department. So I'm really kind of confused as to what they're trying to do here.” He went on to say that he believes the lawmakers fundamentally misunderstand the bail surety industry, adding that comparing bail sureties, which is a financial guarantee, to regular insurance like automobile insurance is illogical.
Is Bail Reform Necessary?
Judges have always been able to consider individual cases when setting bail. The bail schedule is in place to allow people who wish to “bail out” of jail before a bond hearing can do so. In other words, bail hearings are already being held where a judge can consider all of the individual circumstances when setting bail. However, bail is immediately available if someone doesn't want to sit in jail waiting for a hearing. If a person prefers to pay the bail or bail bond fee and go home, rather than wait to go before a judge, have him hear the case for and against bail, and wait for the judge to make an individual ruling, then they are able to do so.
The other reason for a uniform bail schedule is to give judges something standard to base their bail rulings off of. However, each judge has always had it within their authority to release an individual for a lower or higher bail amount, based on their perceived risk, or to allow them to go free on their own recognizance, or to be held with no bail available, at all.
Judges Are Already Required To Consider Ability To Pay, When Setting Bail
In January of 2018, a California appeals court ruled that judges must consider a defendant's ability to pay bail when determining the bail amount. This could result in much lower bail being required, in some cases.
California Judges Oppose Bail Reform
The Alliance of California Judges is in opposition to AB42 and SB10. In a letter to lawmakers, the Alliance of California Judges revealed that nearly ever county in the state already has a pretrial service in place. “Nearly every county in California already has a pretrial service in place to screen defendants and recommend their release on appropriate conditions, without bail, when doing so does not pose a serious danger to the public or a significant risk of non-appearance.”
The ACJ offers an alternative to bail reform. They propose a program that would include increased bail screening and some funding to help low-income arrestees meet their bail requirements when it is deemed appropriate. But, it would not prevent those who wished to post bail and get out of jail more quickly from doing so.
Bail Reform Redundant And Unnecessary
Between the January 2018 ruling requiring judges to consider a defendant's ability to pay when setting bail, to the existence of pretrial agencies in nearly every county in the state, it would be redundant and wasteful to do as Hertzberg and Bonto are proposing.
Proposed Bail Reform Too Costly For The People Of California
The system that is being proposed in place of the bail system, would require huge outlays of resources from a state government that is already struggling to pay the bills. According to the analysis released by the Assembly Appropriations Committee, the state would have to spend “hundreds of millions of dollars” to establish and administer the new pretrial program. In addition, the state would also face the expense of court-appointed lawyers for the defendants, to the tune of hundreds of millions of dollars. Some civil groups have estimated the cost to the State of California to be more than 2 billion dollars before it's all said and done.
Advocates for the change insist that savings will be seen by the reduced expense of keeping fewer people behind bars. However, it is unclear how many people will be declared “safe” to release on their recognizance and how many will be considered too much a risk and will remain behind bars until trial.
No On SB10
As the citizens of California head to the polls in November, they will have an opportunity to make their voices heard on bail reform as they choose a candidate for governor. Before November, however, you can let your state representatives know that you oppose bail reform by calling or emailing their offices. You can find your representative's contact information here.